국제부부재산제와 처의 지위

• 영문명: The International Marital Property Regime and the Status of a Wife
• 발행기관: 이화여자대학교 한국여성연구원
• 저자명: 이병화(Lee Byung-Hwa)
• 간행물 정보: 『여성학논집』제16집, 49~82쪽, 전체 34쪽
• 주제분류: 사회과학 > 여성학
• 파일형태: PDF
• 발행일자: 1999.12.01

영문 초록

As each nation of the world faces an age of internationalization and the range of individuals' activities spreads internationally, a wide variety of law-related issues surface. Those in the area of international-law have a strong tendency to adhere to the characteristics of their own national laws, and great difficulties arise in cases of public / private relations. This paper looks at the international marital property regime. The economic importance and impact of international marriages, which are ever increasing, centers on the status of wives as developed through the marital property regime of the substantial law and that of the conflict of law in relation to the equality of women and men. The laws of the marital property regime can be summarized as following: As the status of wives, who were previously not granted an independent economic role in the conventional and patriarchal family system, has improved, greater equality between women and men has begun to be realized, and a wife's right to property on the basis of the marital property regime in law has expanded. As a result, each nation has come to adopt a legal property regime and the marital property contract system. Today a majority of nations recognize the independent property rights of a wife by adopting husband-wife separate ownership. Judicial precedents and theories interpret the household work of a wife in a broader fashion, recognizing co-ownership. Realistically speaking, there are few cases where marital property contracts are put to use, and all couples are dependent on the legal property regime based on civil laws. Secondly, I comment on the marital property regime in terms of conflict in the law. As there is variation in the marital property regime as based on laws, the decision of the governing law is of paramount significance as far as the international marital property regime is concerned. The legislative principles of each nation are employed to solve problems which are divided into the personal-statue principle, the principle of distinguishing personal estate from real estate and the party autonomy principle, all of which have merits and demerits. Due to the principle of giving priority to the law of the husband's nation and the principle of not allowing any change in nationality act against the request for woman-man equality and the protection of inland trade, I would like to make the following suggestions as to the revision in Article 17 of the current Private International Law. 「① The governing law as to the validity of marriage status should be applied to the marital property regime. ② The couple should be allowed to make a selection from among each of the following laws in respect to the property-law which will impact on the couple: 1. the national law of one member of the couple, 2. the law of the domicile of one member of the couple, 3. the law of the habitual residence of one member of the couple, 4. the law of the real estate site in respect to the real estate. ③ The marital property regime should not be able to be opposed by a third party in good faith with regard to the legal action conducted in Korea and if any marital property contract made in a foreign country is not registered in Korea, it should not able to oppose a third party in good faith.」 Revisions to the principle of lex patriae of the husband in Article 16 of the current Private International Law as follows should also be revised. The articles is as follows: 'Marriage's effects shall be governed by the common lex patriae of a married couple. If a married couple's citizenship is different from each other, it shall be governed by the common laws of domicile. If they have no common domicile, it shall be governed by the common laws of habitual residence. If they don't even have a place to dwell together, the law of a place related to them most closely will prevail.

목차

Ⅰ. 서론

Ⅱ. 실질법상의 부부재산제

Ⅲ. 저촉법상의 부부재산제

Ⅳ. 결론

참고문헌

Abstract