이혼으로 인한 재산분할청구권의 파산절차상 처리방안

The Processing of the Bankruptcy Proceedings of the Claim for the Division of Property by Divorce

A debtor may have no properties in his/her name but more properties in the divorced spouse’s name worth higher than the amount of debt when filing bankruptcy due to the default of payment. In this case, what matters is whether the trustee in bankruptcy can exercise the claim for the division of property of the debtor. Some might deny the claim for the division of property because it is a right which is strictly personal to the obligor in terms of exercise. However, while the claim for the division of property may not be subject to the subrogation right of a creditor as it is impossible to confirm the range of recognition of division of property, the claim for the division of property of a debtor is regarded as appertaining to the bankruptcy estate as the right of claim in terms of property given the facts that the bankruptcy proceedings are executed collectively rather than individually; the claim for the division of property is not different from the claim for the division of public property since it is possible to claim division of property if there are no discussions or it is impossible to have discussions; the claim for the division of property violates the right of the bankrupt creditor in terms of the right which is strictly personal to the obligor in terms of exercise; the claim for the division of property of the divorced spouse to the debtor is treated as a bankruptcy claim; and the claim for the division of property causes imbalance. Under the theory of legislation, it is desirable to add a regulation to the Family Litigation Act or Rules that “the judgement on the division of property under the Provision 2 of Article 839-2 of the Civil Law shall be claimed by a trustee in bankruptcy to the other party, if one of the divorced couple declared bankruptcy”.