유책배우자의 이혼청구

Abstract

The holding of the subject case involves whether to grant judicial divorce when the claim is brought by the at-fault spouseon grounds of causes for divorce under Article 840 subparag. 6 of the Civil Act,and the standard of such determination. Based on the fault principle, the Supreme Court has long affirmed its stance that, as a matter of principle, the at-fault spouse mainly liable for marriage breakdown may not claim for divorce on grounds of that breakdown. However, there emerged an argument for overruling the precedent in favor of granting even a divorce claim brought by the at-fault spouse, in view of such factors as: variouslegislative examples of conversion into the no-fault principle amendment of the Civil Act incorporating property distribution and visitation rights as well as the corresponding changes in trial practice changes in value propositions in accordance with economic development and the increase in women’s labor force participation and the rise in divorce rate. The subject case conducts a thorough, multi-faceted review of whether to grant at-fault spouse’s divorce claim. The Majority Opinion took the stance of maintaining the fault principle, while the Dissent’sposition favored conversion into theno-fault principle. Although the existing precedential attitude is upheld under the Majority Opinion, the subject case expanded the scope of granting the at-fault spouse’s divorce claim as an exception, the examples of which as illustrated by the subject case include the following: (a) cases where the protection and considerations of the other spouse and children are amply provided for, to the point of offsetting the liability of the claimant spouse and (b) cases where the passage of time has reached such a point as to render it meaningless to scrutinize the relative liabilities of both parties anymore, with the gradual diminution of both the at-fault spouse’s liability which was once manifest at the time of marriage breakdown, and the pain and suffering on the part of the other spouse. The subject case can be deemed to have takenthe stance of faithfully protecting the female spouse who is still at a social disadvantage, by emphasizing the institutional values of family and marriage. Another significance of the subject case is in setting the direction of trial practice on divorce cases, which has enormous legal implications on the daily lives of the public. Yet, as the Majority Opinion also reasoned along the lines of deeming it premature just yet to convert into the no-fault principle, it would be worthwhile to keep track of future developments, including socio-economic evolution, developments in legal institutions on divorce, and how divorce trial practice is actually implemented.