〈Case concerning whether the result of a market-value appraisal should be reflected in calculating the amount of property division in a property division case〉[Gong 2024Ha, 1008]

【Holding】

[1] In a property division case, whether the court may investigate and determine ex officio the subject matter and value of the property division without being bound by the parties' assertions (affirmative)

[2] The reference time for determining the property subject to division and its value in a property division premised on a judicial divorce (= the date of closing of arguments in the fact-finding court in the divorce action) / The method of evaluating the value of the property that forms the basis for calculating the amount of property division

【Summary of Decision】

[1] One party to a divorce by agreement may claim division of property against the other party (Article 839-2(1) of the Civil Act), and Article 839-2 of the Civil Act applies mutatis mutandis to the right to claim division of property upon judicial divorce (Article 843 of the Civil Act). A property division case is a family non-contentious case of Category Ma [Article 2(1), subparagraph 2 (b) 4) of the Family Litigation Act], and in a family non-contentious case of Category Ma seeking the performance of a property obligation such as the payment of money, the court may not, in principle, order performance of an obligation in excess of the purport of the claimant's claim (main text of Article 93(2) of the Family Litigation Rules). On the other hand, however, the provisions of Part I of the Non-Contentious Case Litigation Procedure Act apply mutatis mutandis to family non-contentious proceedings unless otherwise specifically provided in the Family Litigation Act (main text of Article 34 of the Family Litigation Act), and in non-contentious proceedings, unlike in civil litigation, the court does not rely solely on the parties' arguments but follows the so-called principle of ex officio investigation, under which the court collects the materials forming the basis of its adjudication on its own authority and responsibility (Article 11 of the Non-Contentious Case Litigation Procedure Act); therefore, the court may investigate and determine ex officio the subject matter and value of the property division without being bound by the parties' assertions. Accordingly, in a property division case, asserting the subject matter and value of the property division amounts to no more than a request for the court's ex officio determination thereon.

[2] In a property division premised on a judicial divorce, the property subject to division and its value are, in principle, to be determined as of the date of closing of arguments in the fact-finding court in the divorce action. Although the value of the property that forms the basis for calculating the amount of property division need not necessarily be established by a market-value appraisal, it must be evaluated on the basis of materials that are objective and reasonable; thus, the court must determine the value of each item of jointly owned property on the basis of the objective materials appearing in the record up to the foregoing date of closing of arguments.

【Referenced Statutes】

[1] Articles 839-2 and 843 of the Civil Act; Article 2(1), subparagraph 2 (b) and Article 34 of the Family Litigation Act; Article 93(2) of the Family Litigation Rules; Article 11 of the Non-Contentious Case Litigation Procedure Act; Article 134 of the Civil Procedure Act [matters to be examined ex officio] [2] Articles 839-2 and 843 of the Civil Act

【Referenced Precedents】

[1] Supreme Court Order 2021Seu766, November 10, 2022 (Gong 2023Sang, 43)
Supreme Court Decision 2023Meu11819, December 21, 2023 (Gong 2024Sang, 225)
[2] Supreme Court Order 2000Seu13, May 2, 2000 (Gong 2000Ha, 1427)
Supreme Court Decision 99Meu906, September 22, 2000 (Gong 2000Ha, 2225)
Supreme Court Order 2002Seu36, August 28, 2002 (Gong 2002Ha, 2337)
Supreme Court Decision 2021Meu16933, May 12, 2022
Supreme Court Decision 2022Meu16282, 16299, March 30, 2023

(Source: Supreme Court Decision 2024Meu10370, May 30, 2024 [Divorce and Division of Property, etc.] > Comprehensive Legal Information System, Precedents)