청산으로서의 공유재산 분할

Abstract

When a co-owned asset is to be divided, could the rights and duties of the co-owners against each other be considered in the sense that they are reflected in the concrete result of division? In practice, the question has been raised especially with regard to the division of inheritance. It is, however, an issue which affects the co-ownership in general. This article attempts to answer it from a historical and comparative perspective. The conclusions are as follows.
 1. That the division of a co-owned asset or inheritance has an effect of liquidating the legal relationship between its co-owners (damages, restitution of fruits, compensation for expenses etc.) was already acknowledged in Roman law. The French Civil Code had not known this rule at first, but later introduced it after doctrine and case law had allowed the same result. The corresponding norms can be found in the German Civil Code, too.
 2. Also applying the Korean Civil Code, the interpretation that the legal relationship between the co-owners can be reflected in dividing a co-owned asset or inheritance is definitely possible. It is justified by the division’s purpose, an analogy to art. 1008 and a comparison with dissolution of partnership.
 3. In view of division of inheritance, this rule applies as follows: (1) The burden of inheritance costs should be reflected in division. (2) A substitute asset should be considered according to whether it arises between the co-owners or against a third party. In the former, the substitute asset itself is to be divided. In the latter, damages or restitution claims of the co-owners are to be calculated into the divided share. (3) Fruits or revenues from inheritance can be divided in advance, but are subject to division of inheritance when still extant. (4) Divisible claims and duties divide themselves ipso iure upon devolution of an inheritance. However, they can be redistributed by way of division if necessary for an equitable result.