재산분할에 있어서 소극재산이 적극재산을 초과하는 경우

• 영문명: Property Division At Divorce In Case Debts Exceed Assets
• 발행기관: 한국가족법학회
• 저자명: 오상진(Sang-Jin Oh)
• 간행물 정보: 『가족법연구』가족법연구 제18권 2호, 111~148쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.09.01

영문 초록

If a spouse incurred debt while accumulating family assets or taking care of household affairs, both spouses ought to divide the debts at divorce. Normally, the total value of all debts is deducted from the sum of the marital assets. However, what if the former exceeds the latter? Widely conceived answer from the Supreme Court today is that neither debts nor assets division shall be allowed in such a case. In this paper, a different answer is suggested. In two cases concerned, the plaintiffs had only assets while the defendants had debts exceeding assets. Therefore, it is unlikely that the Supreme Court will make the same decision in the case when the plaintiff’s debts exceed his or her assets while the defendant’s assets exceed his or her debts. This paper proposes that the equal division of property should include the division of both assets and debts even in such a case. Thus, after spouses divide assets, if one spouse (plaintiff) can’t get out of debt or still has excessive debts, the other spouse (defendant) should assume the responsibility for certain portion of the remaining debts. Bases for debts division as well as effects, practical benefits, and potential problems of the debts division are studied in this paper.

목차

Ⅰ. 서 론

Ⅱ. 대법원판례의 입장

Ⅲ. 소극재산이 적극재산을 초과하더라도 재산분할청구가 허용되는 경우

Ⅳ. 채무를 분담하는 내용의 재산분할

Ⅴ. 결 론

참고문헌

ABSTRACT