파탄주의 이혼원인 입법례에 관한 약간의 고찰

A Small Comparative Study on No-Fault Grounds for Divorce

There are two 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, divorce is severely restricted by allowing it only if one spouse is responsible for marital breakdown and the other spouse proves such fault of a guilty spouse’s. No-fault divorce law allows divorce for no other reason that the marriage is broken without asking responsibilities of each party in the process of divorce. It is also characterized by the fact that marriage can be freely resolved by allowing divorce due to separation during a certain period of time. Grounds for divorce in Korea are based on a fault-based regime, which are criticized for infringing the freedom of divorce, human dignity and the right to pursue happiness. The purpose of this article is to consider grounds for divorce in British, American and Japanese divorce laws in order to review the introduction of a no-fault divorce regime in Korean divorce law. Common law generally adopts a no-fault divorce regime, but British law and American law differs in their systems. In addition, since a no-fault divorce regime of common law has not been fully introduced, this article aims to introduce foreign legislations limited to common law. In Japan, although grounds for divorce for judicial divorce are similar to those of Korea, a no-fault divorce regime was introduced by the precedent and an amendment, proposed in 1996, focusing on the introduction of a no-fault divorce regime. Because Japanese divorce law has implications for Korean divorce law in this regard, we examined Japanese divorce law. The conclusion is as follows: British and American divorce law systems adopted a no-fault divorce regime in principle. In those systems, if a certain period of time elapses for a period of separation, divorce is granted irrespective of whether the other party is willing to oppose the divorce or whether the applicant has any liability. Japan has a similar divorce law system to that of Korea. However, it introduced a no-fault divorce regime in the amendment of divorce law designed to transform into a no-fault divorce regime in 1996, that allows divorce by separation of five years. It also took into account the protection of victims that could appear in a no-fault divorce system by putting provisions on hardship clauses and the principle of good faith. From this point of view, common law has changed from a fault-based divorce regime to a no-fault divorce regime in accordance with history and social development, and Japan s amendment also contains this social change. These foreign legislations seem to be highly suggestive of the necessity of reviewing changes in grounds for divorce for judicial divorce in Korea which have been stagnant for over 60 years and transition to a no-fault divorce regime.