유책배우자의 이혼청구에 관한 일고

A Study on Claim for Divorce by the Party at Fault

Since the 1960s, the Supreme Court of Korea has consistently denied divorce claims by the party at fault. However, since the late 1960s, along with the influence of the adoption of active breakdown principal in the divorce laws of many Western countries and the revision in the direction of divorce liberalization, in accordance with the changes in our society, the Supreme Court has allowed the party at fault to file for divorce, exceptionally and limitedly since the late 1980s. And in 2015, the Supreme Court referred the divorce petition case of the party at fault to the consensus, and even held a public hearing to review whether the precedent was changed. In this judgment, compared to previous precedents, the enlargement of scope of exceptional allowance for divorce claims by the party at fault and the criteria for judgment were arranged. As a result, this means that the area where breakdown principal is carried out in our divorce law has become that much wider. The problem is that even though the livelihood security system to protect the rights and interests of divorced spouses and children has been institutionalized to some extent through revisions and legislation of the Civil Act, etc. Whether the legal principle of 'dismissed in principle and permitted as an exception' for the divorce claim of the party at fault, taken from theories and precedents, should continue to be maintained in the future. It is not reasonable to force couples to continue to maintain the marital common life relationship even though the affection and trust according to the nature of marriage no longer exist between them. Therefore, if there is no marital communal relationship due to the breakdown of the marriage and there is no possibility of restoring the marital communal relationship suitable for marriage, in principle, even the divorce request of the party at fault should be allowed. However, even if the marriage is broken down, the constitutional issues of personal dignity and gender equality between husband and wife, the right to pursue happiness and the right to lead a humane life cannot be ignored. the solution to it must be considered.