A Short Examination of the Measures to Protect a Commercial Building Lessee’s De Facto-Marriage Spouse After His or Her Death

Abstract

The birthrate in Korea continues to decline. A phenomenon like this can pose a risk to the existence of a state. For this reason, a number of policies are being proposed to increase the birthrate. Among other things, I propose that marriage, including a de facto marriage, should be protected more thoroughly. For it is common to become a couple through marriage and as a result, children are born.
 The Commercial Building Lease Protection Act, as opposed to the Housing Lease Protection Act, has no provision on a de facto-marriage spouse’s succession to right of lease of commercial building. Like the Housing Lease Protection Act, the Commercial Building Lease Protection Act is a social law. Social law means the law in order to protect the socially or economically disadvantaged, the state intervenes in the relation between individuals which falls under the domain of private law. If it is the only means of living to make a living by running a small store, the death of the commercial building lessee puts his or her de facto-marriage spouse at risk of livelihood. Of course, a fundamental solution to this problem is to put provisions such as provisions of the Housing Lease Protection Act in the Commercial Building Lease Protection Act.
 By the way, until the Commercial Building Lease Protection Act is supplemented, as a second-best solution, this legislative gap in the Commercial Building Lease Protection Act should be filled with the interpretation of the inheritance system in the Civil Act, the system of apportionment for person having special connection in the Civil Act, etc.
 In particular, I’d maintain that the commercial building lessee’s de facto-marriage spouse has a right to inheritance. Even if the commercial building lessee died, his or her de facto-marriage spouse can file a lawsuit to confirm the existence of the de facto marriage concerned because there is standing. Only if the court decision to confirm the existence of de facto marriage becomes final and conclusive, the de facto marriage turns into a legal marriage under customary law retroactively when there was a substance of marriage which can objectively be recognized as a marital cohabitation. A spouse stipulated in Article 1003 of the Civil Act refers to a legal-marriage spouse. A legal marriage includes not only a legal marriage under statutory law but also a legal marriage under customary law. As a result, the commercial building lessee’s spouse has a right to inheritance.