재판상 이혼원인에서 파탄주의 도입에 관한 제언 (A Proposal to the Introduction of No-Fault Divorce Regime to the Judicial Divorce Proceedings)

서지정보

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· 저자명 : 조경애

초록

There are two main systems of laws governing grounds for divorce: a fault-based divorce regime and a no-fault divorce regime.
According to a fault-based divorce regime, in the process of filing for divorce, by asserting and proving fault on the part of the other spouse, there occurs a problem that couples become hostile to each other, slander the other party, exaggerate mistakes and reveal personal privacy. In response to these problems arising out of a fault-based divorce regime, a no-fault divorce regime has emerged. According to a no-fault divorce regime, grounds for divorce can be defined neutrally as the irretrievably breakdown, thereby this regime will be reducing the moral shame associated with divorce and alleviating the suffering and hostility that the parties might face during the divorce proceedings. Also, by involving no responsibility for the breakdown of marriage when judging whether marital relations are eliminated, it is possible to pursue a more mature divorce without unnecessary quarrels and perjuries which could occur during the divorce process and it is also possible to concentrate more on treatment and welfare for the parties or minor children who may be harmed by the divorce.
In Korea, the modern divorce law was transplanted at the early stage of the Japanese colonial period. In the Civil Act, enacted from 1960s, ever since the divorce system has been defined by the system of dualization of both divorce by consent and judicial divorce in the same way as the divorce law under the Japanese colonial rule, this dual divorce law systems have been operated until now without changing the big frame.
The provision on grounds for divorce for judicial divorce system, which has been practiced almost without revision for 60 years since its enactment, has limitation in a sense that it cannot accept the changed views on family and marriage. Grounds for divorce in Korea are based on a fault-based divorce regime, which cannot be free from the criticism such as it infringes the freedom of divorce, human dignity and the right to pursue happiness. In this regard, discussions have been actively conducted toward the need to introduce a no-fault divorce regime in law academia, in law practice, and in a section of a society, focusing on the issue of divorce claim by a guilty spouse. Hence, on June 26, 2015, the Supreme Court referred a guilty spouse's divorce claim case to en banc. In this thesis, it is concluded that it is difficult for the current provision on grounds for divorce to solve the problems arising out of the diversified grounds for divorce and judicial proceedings for divorce. In order to search for the introduction of a no-fault divorce regime, we conducted an empirical analysis through examining various theories and analysing tendency of precedent verdict of divorce, divorce statistics and consciousness survey. As a result, we confirmed that the theoretical doctrine which allows the introduction of a no-fault divorce regime has increased in recent years, and the precedent verdict of divorce also tends to broaden the range of exceptional approvals of a guilty spouse's divorce claim case.
However, there are some opinions that subparagraph 6 of Article 840 of the Civil Act can be interpreted as a basis provision for a no-fault divorce regime and it is possible to approve the claim of divorce by a guilty spouse, only by active modification of the precedent verdict of divorce without amendment of the law itself. But these are unreasonable because it should have provided a system for protection of victims if subparagraph 6 would have been a provision for a no-fault divorce regime. There is a limit to broadening the scope of divorce approval to a divorce claim initiated by a guilty spouse based on subparagraph 6, and the divorce approval to such divorce claim initiated by a guilty spouse based on subparagraph 6 could have resulted in the tremendous increase in the number of victim of divorce. Therefore, the revision of the law on grounds for divorce should be preceded by the introduction of no-fault divorce regime.
According to a result of divorce counseling statistics for 60 years in Korea Legal Aid Center for family relations, the existing divorce law based on a fault-based divorce regime has limitation to cover various grounds for divorce due to the continuous increase and diversification of the divorce counseling cases related to Article 840(6). In addition, in the consciousness survey about the introduction of a no-fault divorce regime, both of the number of responses that current divorce system should be converted into a complete no-fault divorce regime and the number of responses that a fault-based divorce regime should be applied according to the case by case while taking a no-fault divorce regime as a principle surpassed by exceeding a majority the number of responses that a fault-based divorce regime should be the principle. However, analysis of the cases of clients who were forced to divorce by their guilty spouses revealed that it is necessary to provide an institutional instrument to support the economically poor spouses and to protect minor children if a no-fault divorce regime is introduced. Therefore, the provision to protect the weak persons should be prepared when a no-fault divorce regime is to be introduced.
As mentioned above, by reviewing thoroughly and considering the existing discussion which insisted on the introduction of a no-fault divorce regime and considering the empirical studies, we have derived the conclusion that it is necessary to introduce a no-fault divorce regime to grounds for divorce and thus, as a direction of amendment of divorce law, we suggest amendments to reduce the emotional resistance of the people by maintaining part of a fault-based divorce regime provisions within grounds for divorce. Furthermore, it is proposed that grounds for divorce under Article 840 of the Civil Act shall be defined as the provision on a no-fault divorce regime and that of a fault-based divorce regime will be applied in parallel. We also propose that divorce shall be permitted with a separation of 6 years, and that provision on harsh clauses and the principle of good faith should be newly established. In conclusion, the previous discussion is hereby summarized.

영어초록

There are two main systems of laws governing grounds for divorce: a fault-based divorce regime and a no-fault divorce regime.
According to a fault-based divorce regime, in the process of filing for divorce, by asserting and proving fault on the part of the other spouse, there occurs a problem that couples become hostile to each other, slander the other party, exaggerate mistakes and reveal personal privacy. In response to these problems arising out of a fault-based divorce regime, a no-fault divorce regime has emerged. According to a no-fault divorce regime, grounds for divorce can be defined neutrally as the irretrievably breakdown, thereby this regime will be reducing the moral shame associated with divorce and alleviating the suffering and hostility that the parties might face during the divorce proceedings. Also, by involving no responsibility for the breakdown of marriage when judging whether marital relations are eliminated, it is possible to pursue a more mature divorce without unnecessary quarrels and perjuries which could occur during the divorce process and it is also possible to concentrate more on treatment and welfare for the parties or minor children who may be harmed by the divorce.
In Korea, the modern divorce law was transplanted at the early stage of the Japanese colonial period. In the Civil Act, enacted from 1960s, ever since the divorce system has been defined by the system of dualization of both divorce by consent and judicial divorce in the same way as the divorce law under the Japanese colonial rule, this dual divorce law systems have been operated until now without changing the big frame.
The provision on grounds for divorce for judicial divorce system, which has been practiced almost without revision for 60 years since its enactment, has limitation in a sense that it cannot accept the changed views on family and marriage. Grounds for divorce in Korea are based on a fault-based divorce regime, which cannot be free from the criticism such as it infringes the freedom of divorce, human dignity and the right to pursue happiness. In this regard, discussions have been actively conducted toward the need to introduce a no-fault divorce regime in law academia, in law practice, and in a section of a society, focusing on the issue of divorce claim by a guilty spouse. Hence, on June 26, 2015, the Supreme Court referred a guilty spouse's divorce claim case to en banc. In this thesis, it is concluded that it is difficult for the current provision on grounds for divorce to solve the problems arising out of the diversified grounds for divorce and judicial proceedings for divorce. In order to search for the introduction of a no-fault divorce regime, we conducted an empirical analysis through examining various theories and analysing tendency of precedent verdict of divorce, divorce statistics and consciousness survey. As a result, we confirmed that the theoretical doctrine which allows the introduction of a no-fault divorce regime has increased in recent years, and the precedent verdict of divorce also tends to broaden the range of exceptional approvals of a guilty spouse's divorce claim case.
However, there are some opinions that subparagraph 6 of Article 840 of the Civil Act can be interpreted as a basis provision for a no-fault divorce regime and it is possible to approve the claim of divorce by a guilty spouse, only by active modification of the precedent verdict of divorce without amendment of the law itself. But these are unreasonable because it should have provided a system for protection of victims if subparagraph 6 would have been a provision for a no-fault divorce regime. There is a limit to broadening the scope of divorce approval to a divorce claim initiated by a guilty spouse based on subparagraph 6, and the divorce approval to such divorce claim initiated by a guilty spouse based on subparagraph 6 could have resulted in the tremendous increase in the number of victim of divorce. Therefore, the revision of the law on grounds for divorce should be preceded by the introduction of no-fault divorce regime.
According to a result of divorce counseling statistics for 60 years in Korea Legal Aid Center for family relations, the existing divorce law based on a fault-based divorce regime has limitation to cover various grounds for divorce due to the continuous increase and diversification of the divorce counseling cases related to Article 840(6). In addition, in the consciousness survey about the introduction of a no-fault divorce regime, both of the number of responses that current divorce system should be converted into a complete no-fault divorce regime and the number of responses that a fault-based divorce regime should be applied according to the case by case while taking a no-fault divorce regime as a principle surpassed by exceeding a majority the number of responses that a fault-based divorce regime should be the principle. However, analysis of the cases of clients who were forced to divorce by their guilty spouses revealed that it is necessary to provide an institutional instrument to support the economically poor spouses and to protect minor children if a no-fault divorce regime is introduced. Therefore, the provision to protect the weak persons should be prepared when a no-fault divorce regime is to be introduced.
As mentioned above, by reviewing thoroughly and considering the existing discussion which insisted on the introduction of a no-fault divorce regime and considering the empirical studies, we have derived the conclusion that it is necessary to introduce a no-fault divorce regime to grounds for divorce and thus, as a direction of amendment of divorce law, we suggest amendments to reduce the emotional resistance of the people by maintaining part of a fault-based divorce regime provisions within grounds for divorce. Furthermore, it is proposed that grounds for divorce under Article 840 of the Civil Act shall be defined as the provision on a no-fault divorce regime and that of a fault-based divorce regime will be applied in parallel. We also propose that divorce shall be permitted with a separation of 6 years, and that provision on harsh clauses and the principle of good faith should be newly established. In conclusion, the previous discussion is hereby summarized.

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