우리나라 협의이혼제도의 개정 및 발전과정에 관한 소고 ╶ 제도적 개선방안에 대한 제언을 겸하여╶

Abstract

The divorce system in Korea has a dual structure of divorce by consent and divorce by trial. After the Japanese occupation at the end of Joseon Dynasty, the Joseon Civil Decree introduced both divorce by consent and divorce by trial in today’s framework. A divorce by consent review system was introduced in 1963 as Article 834 of the civil act enacted that ‘a couple can divorce by consent.’ In 1977, by introducing a consensual divorce intention confirmation system, the court’s involvement was stipulated in the divorce by consent process, deviating from the divorce by consent system under Japanese civil law. However, due to the formal divorce confirmation procedure of the court, marriage relationships could be easily resolved, further weakening the protection of children and the victims of divorce. In order to remedy these problems, the divorce consideration period and counseling recommendation system were introduced in June 22, 2008, and the divorce by consent system, which requires the submission of consultation on child rearing, has been implemented. As such, various procedures have been prepared by improving the divorce by consent system, which was simply divorced only by agreement of the parties. This is to ensure that whether or not to divorce is left to the free will of the parties, but the country intervenes in the consequences of divorce to protect the victims of divorce and to reinforce the country's guardianship, especially for minor children. In this sense, the divorce by consent system has the characteristics of a no-fault divorce law. The divorce by consent system in Korea could be evaluated to have made much progress through several revisions, unlike the divorce by trial system that has been stagnant since its enactment in 1960. However, the current divorce by consent system has problems such as the limit of guardianship role of family court and counsel recom- mendation provision and, also, there are several tasks unresolved, such as imbalance with the divorce by trial system or dual structure of the divorce system. In this regard, legislation that treats divorce by consent as a non-contentious case may be considered. More fundamentally, however, it is necessary to reorganize the divorce system as whole so that it can be operated in connection with divorce by trial.