이혼에 따른 재산분할심판에서 당사자 간 일부 재산분할 합의의 소송상 효력

• 영문명: The Effects of the Partial Division Agreement Between Parties during the Court Property Division Procedure upon Divorce -Regarding the Supreme Court Decision 2011meu1116 on July 12th, 2013-
• 발행기관: 한국가족법학회
• 저자명: 한애라(Han, Ae-Ra)
• 간행물 정보: 『가족법연구』家族法硏究 第32卷 2號, 379~404쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.07.30

영문 초록

The Supreme Court Decision 2011meu1116 rendered on July 12th, 2013 decided that the court is not bound by the parties’ partial division agreement on certain assets and does not need to divide those assets as agreed upon by the parties, as the division of property case is non-contentious and thus principle of ex officio examination by the Non-contentious Case Litigation Procedure Act shall apply mutatis mutandis to it. However, a division of property should be by agreement between parties, and only if no agreement is made the Family Court shall determine the amount and method of division. A partial agreement as well as an agreement on the entire property is valid. If an agreement has been made on certain assets, a party’ request to divide the assets should be dismissed, and the party can file a civil claim based on the agreement. Therefore, if a partial agreement on certain assets has been made before or during the Family Court’s division procedure, the court should not order ex officio the division of the assets disregarding the parties’ agreement, and the claim on the certain assets should be partially dismissed. In my view, the court’s decision that the court may disregard the parties’ division agreement on certain assets and divide them ex officio should be reconsidered and the parties’ own agreements should be respected.

목차

Ⅰ. 대상판결

Ⅱ. 재산분할 관련 규정 및 그 해석론과 관련 판례

Ⅲ. 이혼에 따른 재산분할 사건에서 일부 재산분할 협의가 이루어진 경우 법원의 심판범위

Ⅳ. 결 어

키워드

이혼에 따른 재산분할 일부 재산분할 협의 직권탐지주의 재산분할심판절차 청구의 일부 각하 division of property upon divorce partial division agreement principle of ex officio examination division of property procedure partial dismissal