사실혼 보호 법리의 재검토

Reexamination of protection legal principles of De facto Marriage

Although de facto marriage has the figure of marriage it can’t be protected as same as registered marriage unless they are registered, thus it’s still a subject of argument in terms of its legal protection. Especially in case of withdrew of de facto marriage, what can be the issue is the matter regarding properties vested to government from party of de facto marriage. In case of contract of lifetime annulment in terms of registered marriage, it can be done through property partition, in case of contract of death because annulment, settlement will proceed through spouse’s inheritance. But there are no clear regulations on this for case of contract of annulment of de facto marriage. Yet the supreme court admit property partition claim for divorce as registered marriage in case of contract of lifetime annulment of de facto marriage, but in case of contract of death cause annulment, they don’t admit both property division claim and inheritance to the surviving de facto marriage spouse. But toward property that was made by mutual effort between de facto marriage spouses, allowing settlement only in case of contract of lifetime annulment means it’s losing its balance for protection level toward surviving de facto marriage spouse. Therefore in this essay, in viewpoint of settlement and maintaining of property that was made by participation of parties related to de facto marriage, we examined about few matters for protection of parties related to de facto marriage. First, we took a look at condition of de facto marriage and recognition got its protection in Korea for examination of its necessity, and then we stressed about the importance of protection of de facto marriage spouse. We examined it by dividing applicable protective legal principles into contract of lifetime annulment and contract of death cause annulment through distinguish necessity and typology which need protection. But instead of suggesting certain detailed plan or a new legislation regarding protection of de facto marriage, it stopped as examining it based on opinions that were discussed and simply appealing personal opinions. In order to protect de facto marriage, problem solving plan related to family law system should be sought. Especially in case of existing law consider for property division claim and dual structure of inheritance that are selected as protection plan for legal marriage spouse, it’s regarded as that the opinion of give inheritance could be more proper in terms of legislation. Hereafter, related to status of de facto marriage that are occurring variously in Korea, we wish more detailed discussion would be conducted for it’s protective plan.