이혼시 퇴직연금 재산분할의 집행법적 문제점과 개선방안에 관한 소고 (A Study on the Civil Enforcement of Equitable Distribution of Future Pension Rights upon Divorce)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 18권 / 2호 / 321 ~ 360페이지
· 저자명 : 박지원

초록

It has been recognized that retirement pension rights are the second mostvaluable financial resource in a marriage after the real estate, such as familyhome. When the marriage is getting worse, it is up to the family court todecide whether and how joint assets, including pension rights, are divided.
Before July 2014, the Supreme Court has continuously denied to dividefuture pension rights. However, in July 2014, in a divorce action betweenpublic official and his housewife, the entire bench of Supreme Court changedits own view en banc by allowing division of future pension rights, whethervested or not. And the Court determined the method of division that pensionrecipient pay to the other spouse a certain proportion of the pension paymentat a regular interval is also possible.
However, the spouse other than recipient may experience difficulties, ifthe recipient do not fulfill his obligation voluntarily. If the recipient failsto pay annuity without just cause, the family court may order performanceunder Art. 64 of the Family Litigation Act. This order is indirect remedyin nature, because only fine or detention is available. Direct remedy of seizureand assignment order is not availble at this moment, because every publicPension Acts have a provision against assignment and seizure.
In 1974, the U.S. Congress enacted the Employee Retirement Income SecurityAct (ERISA) in order to prevent the seizure of retirement plan. On the contrary,several states continued to give equitable distribution. The conflict makethe Congress legislate the Retirement Equity Act of 1984, creating QualifiedDomestic Relations Order(QDRO). Once QDRO is entered by the state court,the non-employee spouse can be paid directly from the pension provider.
In U.K., since 1 December 2000, the Welfare Reform and Pensions Act1999 has allowed a couple on divorce the option of pension sharing andthe court can grant a pension sharing order against the members pensionrights in a pension arrangement. The pension sharing order will create aseparate pension arrangement in the name of the former spouse.
Both U.S. and U.K. legislation can be good examples of direct remedyfor the procedural difficulties of pension division. Hence next step shouldbe taken by the National Assembly to make the pension division upon divorcepossible both substantively and procedurally.

영어초록

It has been recognized that retirement pension rights are the second mostvaluable financial resource in a marriage after the real estate, such as familyhome. When the marriage is getting worse, it is up to the family court todecide whether and how joint assets, including pension rights, are divided.
Before July 2014, the Supreme Court has continuously denied to dividefuture pension rights. However, in July 2014, in a divorce action betweenpublic official and his housewife, the entire bench of Supreme Court changedits own view en banc by allowing division of future pension rights, whethervested or not. And the Court determined the method of division that pensionrecipient pay to the other spouse a certain proportion of the pension paymentat a regular interval is also possible.
However, the spouse other than recipient may experience difficulties, ifthe recipient do not fulfill his obligation voluntarily. If the recipient failsto pay annuity without just cause, the family court may order performanceunder Art. 64 of the Family Litigation Act. This order is indirect remedyin nature, because only fine or detention is available. Direct remedy of seizureand assignment order is not availble at this moment, because every publicPension Acts have a provision against assignment and seizure.
In 1974, the U.S. Congress enacted the Employee Retirement Income SecurityAct (ERISA) in order to prevent the seizure of retirement plan. On the contrary,several states continued to give equitable distribution. The conflict makethe Congress legislate the Retirement Equity Act of 1984, creating QualifiedDomestic Relations Order(QDRO). Once QDRO is entered by the state court,the non-employee spouse can be paid directly from the pension provider.
In U.K., since 1 December 2000, the Welfare Reform and Pensions Act1999 has allowed a couple on divorce the option of pension sharing andthe court can grant a pension sharing order against the members pensionrights in a pension arrangement. The pension sharing order will create aseparate pension arrangement in the name of the former spouse.
Both U.S. and U.K. legislation can be good examples of direct remedyfor the procedural difficulties of pension division. Hence next step shouldbe taken by the National Assembly to make the pension division upon divorcepossible both substantively and procedurally.

참고자료

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