The Korean Society Of Family Law最新文献

{"title":"Personal Property System and Its Institutional Premises: Adult Guardianship and Division of Inheritance Property","authors":"水野 紀子","doi":"10.31998/ksfl.2023.37.3.131","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.3.131","url":null,"abstract":"<jats:p />","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139201761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Seeking for the Institutionalization of Supported Decision-Making","authors":"InHwan Park","doi":"10.31998/ksfl.2023.37.3.151","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.3.151","url":null,"abstract":"<jats:p />","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"189 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139203425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Forced Share System in Japan","authors":"青竹 美佳","doi":"10.31998/ksfl.2023.37.3.179","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.3.179","url":null,"abstract":"<jats:p />","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"239 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139204837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"La réserve héréditaire français et ses implications pour la réforme du droit civil coréen","authors":"H. Kim","doi":"10.31998/ksfl.2023.37.2.121","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.121","url":null,"abstract":"Le système de la réserve héréditaire du droit civil coréen a joué un rôle très important en conciliant les intérêts des héritiers avec la liberté de volonté du testateur, mais comme il ne comporte que sept articles, les relations juridiques entourant le droit de réduction ont été largement tributaires de l'interprétation. En conséquence, la Cour suprême a récemment été saisie de diverses microquestions concernant le calcul de l'héritage, et la constitutionnalité de l'héritage a été contestée devant la Cour constitutionnelle. Cependant, le système de la réserve héréditaire qui a été introduit dans le Code civil françaisen 1804, est un produit de la Révolution française, et son contenu est stipulé en détail, et le système de la réserve héréditaire coréen est fondamentalement influencé par le droit de la réserve héréditaire français, de sorte que les dispositions du droit français et l'interprétation du droit français peuvent non seulement servir de référence pour l'interprétation du droit coréen, mais aussi de source importante pour la révision du droit civil coréen. S'inspirant du système français, cet article propose les théories législatives suivantes pour le système coréen: l'introduction du principe d'évaluation, l'établissement d'un système de renonciation préalable, l'ajustement de l'héritage spécifique en considération des bénéfices extraordinaires dans le partage de l'héritage, la limitation de la période de temps pour les biens donnés aux cohéritiers en tant que bénéfices extraordinaires, et le calcul de l'évaluation en multipliant la valeur marchande de l'objet de la donation au moment de la cession par le taux de variation de l'inflation. En outre, les relations avec l'assurance-vie et les trusts testamentaires devraient être clarifiées.","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116352211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Effect of Inherited Property Division and the Protection of Third Persons","authors":"Chonghan Oh","doi":"10.31998/ksfl.2023.37.2.227","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.227","url":null,"abstract":"There are divided views regarding when a co-inheritor acquires real rights over an immovable, as inherited property, according to division agreement or division judgment. The one view suggests that upon the division agreement or division judgment, he acquires them without registration. This view applies Article 187 of the Civil Act to the acquisition of real rights based on inheritance property division. The another view applies Article 186 of the Civil Act, and therefore holds that registration is necessary for the acquisition of real rights. Both arguments are theoretically plausible. However, our Civil Act adopts the principle that the acquisition of real rights over an immovable require registration(Article 186), while not recognizing bona fide acquisition over an immovable. Therefore, for the sake of secure transactions, real rights acquisition without registration (Article 187) should be limited as much as possible. From this perspective, the second view is more reasonable. When the effect of inheritance property division is retroactive to the commencement of the inheritance (see Article 1015 of the Civil Act), it may prejudice third persons who acquired rights over the inheritance property before the division. Therefore, Article 1015 includes a proviso limiting retroactive effect by stating that “the rights of third persons shall not be prejudiced thereby.” The prevailing doctrine and case law have not clearly explained the meaning of the proviso in Article 1015 and define the scope of protected third parties as “those who acquired rights over the inheritance property before the division and met the requirements for effectiveness”. However, the meaning of the proviso in Article 1015 should be interpreted as follows: while the effect of inheritance property division retroactively applies among the coinheritors, it does not apply retroactively in relation to third persons. By interpreting the proviso in Article 1015 in this way, the scope of protected “rights of third persons” and unprotected “rights of third persons” can be automatically derived, and that criteria to distinguish between the two, as suggested by prevailing doctrine and case law, are no more necessary. Recent case law states that if there is an adjudicated division of inherited immovable, the real rights in the inheritance property are transferred to a co-inheritor even without registration, pursuant to Article 187 of the Civil Act, while the rights acquired by a third person acting in good faith before the registration over the inherited immovable are protected. This view is also supported by prevailing doctrine. However, the reasoning presented in case law and prevailing doctrine lacks persuasive force. Particularly, conclusions such as recognizing the public confidence of registration would be unacceptable under our Civil Act, because our Civil Act does not recognize bona fide acquisition over an immovable. Instead, it is more reasonable to assert that even in the case of ","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"170 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117271416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The right to claim alimony for divorce against a third party and the extinctive prescription","authors":"Sirl A Park","doi":"10.31998/ksfl.2023.37.2.261","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.261","url":null,"abstract":"Recently, a 2nd trial court found that the right to claim for damages resulting from an adultery to the person engaged in a sexual relation with a married person shall lapse by prescription if not exercised within three years commencing from the date on which the injured party becomes aware of such adultery and of the identity of the person who caused it. Furthermore, the court dismissed the claim of the plaintiff on the ground that the claim of the plaintiff had expired due to the extinctive prescription. The Supreme Court rendered a judgment dismissing the appeal to the effect of accepting the trial court without any separate legal explanation. The main purpose of this article is to point out the problem of the judgment of the above court regarding the starting point of the extinctive prescription of the right to claim alimony for divorce against a third party. Liability for damage due to infidelity itself is different from the liability for alimony in cases where the breakup of the marriage relationship or divorce occurs due to the infidelity, in view of the contents of the provisions of the Civil Act and the Family Litigation Act, and the difference of the causes and damages of each liability. The starting point of the extinctive prescription of the right to claim for alimony for divorce should be regarded as the time of dissolution of the marriage (or when the divorce is established). The 2nd trial court's argument that the extinctive prescription of the right to claim for alimony for divorce has been completed is not an argument for the extinctive prescription itself, but an argument for whether it is appropriate to acknowledge the liability for alimony for divorce to a third party. On the other hand, whether or not the right to claim alimony for divorce against a third person is acknowledged requires a separate review. It is difficult to generally recognize the right to claim alimony for divorce against a third party. The reason is as follows. First of all, the liability for compensation for alimony due to extreme mental anguish suffered by a victim spouse due to the involvement of a third party in cheating can be acknowledged through the exercise of the right to claim for cheating itself in a civil court not a family court. Secondly, it is difficult to uniformly admit a causal relationship between temporary or short-term cheating and divorce. The establishment of divorce is the result of a decision based on the free will of the couple concerned. A third party who participates in cheating violates the contractual relationship between the victim and the offending spouse. Nevertheless, if a third party urges the victim spouse to divorce by threats or coercion, or if the third party maintains a de facto marital relationship with the spouse at fault until the judicial divorce is established(if there are special circumstances where it can be seen that the third pary has an intention to break up the marriage relationship of the other person), th","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"1 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130083456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New Legislative Tasks with Reflection on the 10 Year Experience of the New Adult Guardianship System","authors":"C. Je","doi":"10.31998/ksfl.2023.37.2.63","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.63","url":null,"abstract":"The main feature of the new adult guardianship system which came into force on 1st July 2013 is that it introduced social protection element to the area of statutory representation for the persons under guardianship, who used to be represented by family member guardians. But the new adult guardianship system has been exposed to critics that it functions as a barrier to exclude persons with dementia, developmental disabilities, or mental health issues from participation in social activities through legal actions rather than as a facilitator to promote them to do so. With this kind of concerns, the author conducted research on what new legislative tasks are required in the area of guardianship, or statutory representation, and enduring power of attorney so as for persons with decision making disabilities to be supported to participate in social activities through legal actions. As a result of the research, this paper suggests the reform of the Korean Civil Code and the enactment of a social service act the main purpose of which is to register the enduring power of attorney and assist and supervise the registered attorney. The following suggestions are among the reform of the Korean Civil Code. Firstly, this paper suggests that legal provisions on adult guardianship including those on the restriction of legal capacity of persons in the guardianship be abolished in the general part of the Civil Code; instead, the general legal provision on mental capacity shall be inserted there. It means that all the provisions on guardianship shall be placed in the family law part of the Korean Civil Code. Secondly, Adult guardianship shall be separately regulated from minor guardianship because both guardianships target at distinct purpose respectively and do not share common features except the provision on remuneration and reimbursement of expenditure spent by guardians. Moreover, this paper suggests that adult guardians shall be appointed based on the principle of necessity: the power and authority of guardians and the duration of guardianship is subject to the extent which persons under guardianship are expected to be supported immediately and in the very near future. In this regard, persons under guardianship may be allowed to do legal transactions with the consent of guardians only in the case where such transactions are likely to harm the persons under guardianship. Thirdly, this paper suggests that legal provisions on contractual guardianship shall be abolished in the Civil Code, which caused negative effects on the future of still available enduring power of attorney without any special enactment. Lastly, this paper suggests that a special act, the main contents of which are to register the enduring power of attorney documents and other statutory representation power based on various social welfare statutes and supervise those legal representatives so as for elders and other persons suffering from illness and disabilities to cope with risks they face whil","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127062292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"[Discussion] Regarding the division of property for special property and the divorce case of corporate managers","authors":"Yongshin Chung","doi":"10.31998/ksfl.2023.37.2.45","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.45","url":null,"abstract":"<jats:p />","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122103784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Interpretation and Application of the New Imperative Inheritance Law of Japan","authors":"Soeun Lee","doi":"10.31998/ksfl.2023.37.2.177","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.177","url":null,"abstract":"The amendment of Japanese inheritance law, promulgated on July 13, 2018 and inacted on July 1, 2019, has changed a wide range of legal relations with regard to imperative inheritance. The most remarkable change in imperative inheritance law is Article 1046 of Japanese Civil Code which stipulates that the heir who may claim the forced heir’s right shall claim restitution in money. Under the new law, the heir who claimed the forced heir’s right no longer has the right in rem over the property given to a third person. This article reviews each provision of Japanese imperative inheritance law and the academic discussion in Japan thereof. Based on the review, I suggest amendment of some provisions of the Korean Civil Code (hereinafter “KCC”). More specifically, I suggest the following amendments: (a) the range of the heir who may claim the forced heir’s right shall be reduced to the spouse and children of the deceased; (b) the forced heir’s right shall be constructed as monetary claim; (c) the range of donation that becomes the subject of the said right shall also be reduced in terms of time period; (d) the order of restitution shall be stipulated in KCC; (e) the potential heirs shall be able to abandon the said right in advance.","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132118958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Problems and Improvement Tasks of the Current Oil Distribution System","authors":"In-Gu Bae","doi":"10.31998/ksfl.2023.37.2.219","DOIUrl":"https://doi.org/10.31998/ksfl.2023.37.2.219","url":null,"abstract":"<jats:p />","PeriodicalId":315796,"journal":{"name":"The Korean Society Of Family Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122002363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}