혼인계약에서 정의의 원칙

The Principle of Justice in Marriage Contract

In general a family has been regarded as a social institution, in which justice is not an appropriate virtue. Because the family constituted on the basis of affection and solidarity between married persons is natural community and justice is irrelevant to it. Also the family as domestic sphere is preserved by the motherliness and it is regarded as women`s nature. However Okin argued that justice is also important principle in the family. Like Okin’s position, the korean constitutional law provides that the marriage and the family relation should be made up of individual’s dignity and man and woman’s equality. According to the spirit of the constitutional law, justice is the most important value in the marriage law and it has to be realized from the marriage contract to the divorce. On the assumption that, this paper deals with, how justice is realized from the marriage contract to the divorce. Marriage is characterized as a contract relation, at the same time it is also regarded as a community in the society. In order to realize justice in marriage contract, marriage property system should be considered the contract relation and the community relation. The korean civil law provide that separate property system is applied, if the parties don’t agree with the property relation before the marriage contract. It is questionable that separate property system is the best choice to realize the community character of the marriage and justice. The community property system in France and Germany can be also considered as an alternative. The korean civil law provide that on divorce marriage property should be devide. In the distribution of the marriage property it should be considered that many women miss the opportunity in labor market. In conclusion it is showed that the most important premise to realize justice in the marriage law is that in a person’s life the marriage, the family and the labor are united and have effect with one another. As a result justice in the marriage and family is realized, when the organic interaction of the marriage, the family and the labor is appropriate accepted in the marriage law.