실질적 특유재산에 대한 재산분할

Separate Property in the Division of Matrimonial Property

In the division of matrimonial property at divorce, the properties which were acquired by cooperation of both parties should be divided. Then should separate property be divided, too? Separate property means the property which one party owned before the marriage or inherited or was given from the third party during the marriage. There are many cases in which division of separate property mattered. However, there is not much discussion on this problem. Nor is the judicial practice settled. The precedent of the Korean Supreme Court declared that separate property can be divided if the partner of the owner actively cooperated the maintenance of it and prevented the diminution of value or increased the value. In some cases, the Supreme Court acknowledged the division when the other partner simply did the household labor. The division of matrimonial property has 2 elements. One is an element of liquidation. The other is an element of support. From the perspective of the liquidation, the household labor itself should not be regarded as cooperation of the marital property. However, from the perspective of the spousal support after the divorce, the separate property can be divided if the division of the marital property was not enough for the spousal support.