Whether Article 527-2 of the Civil Procedure Act may apply mutatis mutandis to a de facto marital relationship (affirmative)

Article 527-2 of the Civil Procedure Act provides that corporeal movables jointly owned by the debtor and his spouse may be seized pursuant to the provisions of Article 527 of the same Act when the debtor occupies them or jointly occupies them with his spouse. The above provisions apply mutatis mutandis to co-owned corporeal movables owned by the married couple in a de facto marital relationship where they have the substance of common life of the married couple and do not report only a marriage.

Article 527-2 of the Civil Procedure Act

[Judgment of the court below]

Original Tech Industries Co., Ltd.

Daegu District Court Decision 96Na8220 delivered on July 9, 1997

The judgment of the court below is reversed and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged, based on the evidence adopted by the court below, that the plaintiff was married with the non-party on April 15, 1995 and living together thereafter. On February 16, 1996, based on the original copy of the decision of provisional seizure of corporeal movables in the Daegu District Court 96Kadan38666 against the non-party on the provisional seizure of corporeal movables, the plaintiff and the non-party on February 16, 1996, the provisional seizure of corporeal movables in the attached list of the judgment of the court below (hereinafter referred to as the "corporeal movables in this case"), which are used for daily life by the non-party on February 16, 1996. Since there was no assertion or proof by the defendant on the fact that the corporeal movables in this case belong to the non-party's unique property, the above objects are presumed to belong to any of the plaintiff and the non-party in de facto marital relation (Article 830 (1) and (2) of the Civil Act).

However, Article 527-2 of the Civil Procedure Act provides that corporeal movables jointly owned by the debtor and his/her spouse may be seized pursuant to Article 527 of the same Act when the debtor occupies or jointly occupies with his/her spouse. Such provision shall also apply mutatis mutandis to co-owned corporeal movables in a de facto marital relationship where a married couple has a substance of community life and does not report a marriage. Therefore, if the court below deemed that corporeal movables in a de facto marital relationship are jointly owned by the plaintiff and the non-party, it would be further determined whether the non-party occupies corporeal movables or jointly possessed by the non-party (the original court stated that corporeal movables in this case were jointly occupied by the plaintiff and the non-party used for their daily life). Nevertheless, it is clear that the court below erred in the misapprehension of legal principles as to Article 527-2 of the Civil Procedure Act, which points out that the execution of provisional seizure of corporeal movables in this case is presumed as public property of the plaintiff and the non-party in a de facto marital relationship, but it cannot be permitted.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)