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

A Study on the No-Fault Divorce Law

&nbsp;&nbsp;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.<BR>&nbsp;&nbsp;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.<BR>&nbsp;&nbsp;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.<BR>&nbsp;&nbsp;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.<BR>&nbsp;&nbsp;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.<BR>&nbsp;&nbsp;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.