혼인 및 이혼절차에서의 능력과 후견

Legal Capacity and Guardianship in Marriage and Divorce Proceeding

The Korean Civil Code provides for a minimum marrying age of 18. Marriage and divorce law presumes that adult have sufficient mental capacity to get married and to divorce. In spite of this presumption, the mentally ill should have the natural capacity to exercise a judgment and express that he or she wants to get or end the marriage. The Korean Supreme Court decided that if spouse did not have the capacity to judge and express like persistent vegetative state, the court could take into consideration the potential possibility of the intention to get married or to divorce in suit. The capacity to get married or divorce is not expected to be high because of the protection for freedom of marriage. The spouse under guardianship can decide marriage and divorce with the consent of guardian. Guardian can not make a decision to get married or divorce on behalf of ward but has a right to sue for a divorce. This study focuses on legal incapacity in marriage and divorce proceedings in terms of the self-determination right of the incapacitated on marriage. This study suggest that guardian or special representative should respect explicit or presumptive will and desire of the incapacitated in spite of the Civil Procedural Code which authorize the filing of marriage annulment or divorce action by guardian or special representative.