Whether it is permissible to waive the right to claim a division of property in advance before the marriage is annulled (negative), and in case where the party who has not yet divorced prepares a document to waive the right to claim a division of property on the premise of the agreement to divorce at the future, whether it can be deemed as a waiver agreement as an agreement on the division of property (negative in principle)

The purpose of the property division system under Article 839-2 of the Civil Act is to liquidate and distribute the actual common property achieved through the cooperation of both parties during marriage. The right to claim the division of property following divorce arises only from the legal effect when the divorce is established, and it cannot be said that specific rights have occurred since the scope and contents of the right to claim the division of property not specified in the consultation or adjudication are unclear and definite until the specific contents are formed according to the consultation or adjudication. As such, waiver of the right to claim the division of property before the marriage is terminated is not allowed by nature. In cases where the parties who have not yet divorced the right to claim the division of property before the divorce is terminated in the course of agreement on the divorce between the parties, the written waiver of the right to claim the division of property is not allowed by nature, barring special circumstances such as the amount of property which is the object of the division of property to be liquidated and distribute all the common property formed through the cooperation of both parties, the amount of property which is the object of the division of property, and the method of division of property, etc.

Article 839-2 of the Civil Act

Supreme Court Decision 98Da58016 Decided April 9, 1999 (Gong1999Sang, 851) Supreme Court Decision 2002Meu1787, 1794, 1800 Decided March 25, 2003

[Judgment of the court below]

Other Party

Cheongju District Court Order 2015BB1000 dated August 24, 2015

The order of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of reappeal are examined.

The purpose of the property division system under Article 839-2 of the Civil Act is to liquidate and distribute the substantial common property achieved through the cooperation of both parties during marriage. The right to claim property division following divorce arises only from the legal effect at the time of divorce, and it cannot be deemed that specific rights have occurred since the scope and contents of the right are unclear and definite until the specific contents are formed through consultation or adjudication (see Supreme Court Decision 98Da58016, Apr. 9, 199). It is not allowed in its nature to waive the right to claim property division before the marriage is annulled (see Supreme Court Decision 2002Meu1787, 1794, 1800, Mar. 25, 2003). In a case where a party who did not divorce prepares a document premised on the premise that the divorce agreement is reached in the process of the divorce agreement between the two parties, and as such, one party’s waiver of the right to claim property division is not permitted by agreement between the parties on the property division and the “property division.”

According to the records, the claimant, as a Chinese, completed a marriage report with the other party on June 7, 2001, and agreed to divorce with the other party on September 6, 201, and prepared a certificate of subparagraph 1 with the other party’s request that “the claimant waives consolation money, I will not claim a division of property.” On the same day, the claimant and the other party submit to the court an application for confirmation of divorce with agreement, and the agreement is reached with the court on October 14, 2013. On the beginning of November 201, 201, the claimant demanded division of property with the other party knowing that he/she may receive a division of property of at least KRW 0,000 through an attorney-at-law, and the other party sent text messages to the other party, if necessary for the claimant’s independent funds.

In light of the above legal principles in light of the above facts, there is no evidence to deem that there was a serious discussion as to the amount of property formed through mutual cooperation between the claimant and the other party, or both parties’ contribution, method of division, etc., and in this case where there is no reasonable ground to waive the claimant’s right to claim division of property, even if the claimant prepared a document to waive the right to claim division of property in the process of mutual agreement between the claimant and the other party, it is nothing

Nevertheless, the court below erred by misapprehending the legal principles on waiver of the right to claim the division of property and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, on the ground that the waiver of the claimant's right to claim the division of property constitutes a consultation on the division of property, and that the agreement is valid by divorce.

Therefore, the order 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 Lee In-bok (Presiding Justice)