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A Study on Professional Degree or License as an Object to be Claimed for Division of Property in Case of Divorce

  • DONG-A LAW REVIEW
  • 2009, (43), pp.269-296
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Bu-Chan Yoon 1

1한남대학교

Candidate

ABSTRACT

In 1990, the right of claims for the division of property on divorce between spouses, is stipulated into Article 839-2 of the Korean Civil Code. This Article provides as follows; (1) One of the parties who gets a divorce by agreement, may claim for division of property against the other party. (2) If no agreement is made for division of property as referred to in paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances. To serve its purpose substantially, proportions as well as properties formed during marriage should be divided, however the Article is too concise to be perfect, it would be found that immoderate discretion is leaved to the court especially regarding the methods of their valuation in the procedure of divorce. The Supreme Court held that professional degree is not a property right to be divided in the divorce proceeding owing to its attribute. In one case, the Supreme Court ruled that husband's Doctor Degree is to be just a factor of consideration in the divorce proceeding to divide the marital properties. This paper points out that the object which has to be divided in the procedure of divorce is not the one spouse's professional degree or license itself but the increased earning capability formed by spouses joint contribution during their marriage. In my humble opinion, one spouse's increased future earning capability does not fall under the category of personal attribute, but an income-generating intangible asset. One can sell, even in advance, the proportion of the future earning capability as long as it is possible to determine the proportion. Although the valuation of the future earning capacity is not that simple, that is not be a proper reason to exclude one spouse's increased future earning capability from marital properties.

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