유책배우자의 이혼청구와 허용기준 - 대법원 2004. 9. 24. 선고 2004므1033 판결

• 영문명: A Study on the No-Fault Divorce Law
• 발행기관: 한국가족법학회
• 저자명: 박종용(Jong Yong Park)
• 간행물 정보: 『가족법연구』家族法硏究 第20卷 1號, 321~354쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.03.01

영문 초록

  In the west no-fault divorce laws were introduced in some countries in 1960s. The tendency of divorce law of the world changes from the fault-grounds divorce to the no-fault divorce. Now many western countries have enforced that. The ground of no-fault divorce is the failure of the marriage relationship. So, in no-fault divorce principle the divorce is permitted if the failure of the matrimonial relationship only exists without fault or no-fault. In no-fault divorce system, we have to remember that Divorce is not a sanction but a remedy.
  However, the Korean Divorce Law has been in a fault-based divorce system from the commencement of family law, 1960. The divorce law was built around the thought that one spouse was guilty of a matrimonial offence. For many years in our country, a petition for divorce by a guilty spouse was not permitted in Korea.
  The major problem of this paper is the question of demand for divorce made by a spouse at fault. Namely, for reason of the failure of the marriage relationship, the spouse wholly or mainly at fault brings the demand for divorce against the other spouse. This problem is raised in the process of transition of divorce law from the fault divorce to the no-fault divorce.
  I think the duty of divorce law is not to help an innocent spouse by maintaining an already destroyed matrimonial relationship, but rather to bring an end to such a marital relationship and to protect the respondent and children financially and mentally, socially.
  While, in 1987 Japanese Supreme Court changed this doctrine and concluded that a marriage that has irretrievably broken down should be brought to end. But the dissolution will include the conditions to prevent not result in grave financial, mental or social hardship for the respondent and children.
  So, I think that Our Supreme Court should change from the fault divorce principle to the no-fault divorce principle. and I propose to adapt the no-fault divorce principle.

목차

Ⅰ. 사실관계
Ⅱ. 들어가는 말
Ⅲ. 이혼법리에 관한 각국의 입법례
Ⅳ. 유책배우자의 이혼청구에 관한 학설과 판례
Ⅴ. 대상판결 검토
Ⅵ. 맺음말
《참고문헌》
영어 초록

키워드

유책배우자 파탄주의이혼 이혼청구 가혹조항 장기간 별거 미성숙자 사회정의관념 the no-fault divorce the failure of the marriage relationship no-fault divorce principle the divorce irretrievably broken down in grave financial mental or social hardship for the respondent and children