유럽인권재판소판결을 통해 본 이혼할 권리 ― 존스턴 대 아일랜드 판결 및 피오트로프스키 대 폴란드 판결 ―

Abstract

The global trend in divorce law is shifting towards the principle of irretrievable breakdown, yet divorce laws in European countries maintain their uniqueness based on religious, political, and cultural backgrounds. This article examines judgments brought before the European Court of Human Rights (ECtHR) by individuals unable to divorce under their national laws, which are bound by the European Convention on Human Rights (ECHR). It explores the extent to which the ECtHR considers national discretion in divorce laws and the scope of the right or freedom to divorce as protected by the ECHR. The article focuses primarily on the ECtHR’s judgment in Andrzej PIOTROWSKI against Poland, where the applicant appealed to the ECtHR after Polish national courts rejected his divorce petition as the “guilty party.” It also examines the landmark case of JOHNSTON AND OTHERS v. IRELAND, which addressed whether the right to divorce can be derived from the ECHR. Through these cases, the article discusses the universal human rights or fundamental rights nature of the right to divorce and seeks an appropriate balance between individual freedom and the stability of the institution of marriage. Above all, this serves as an important reference for discussions on grounds for judicial divorce in our legal system. In the 1986 Johnston v. Ireland judgment, the Court ruled that Articles 8 and 12 of the ECHR do not guarantee a right to divorce. In the Piotrowski case, the applicant sought divorce after separating from his wife due to a relationship with another woman, but Polish courts rejected his petition. The ECtHR, in reviewing this judgment, maintained the position established in Johnston. While acknowledging the Convention as a “living instrument,” the Court determined that this principle does not extend to include a right to divorce. Furthermore, it recognized a wide margin of appreciation for Contracting States in applying divorce-related laws. Notably, the approach of Polish national courts in the Piotrowski judgment is strikingly similar to that of the Korean Supreme Court in terms of legal reasoning. Both courts principally do not allow divorce petitions from the “guilty party” but recognize certain exceptions. This is an interesting phenomenon despite the different religious and political backgrounds of the two countries. The Korean Supreme Court, while principally not allowing divorce petitions from the guilty party, has been gradually expanding exceptions. The freedom to divorce should be considered derivable from Article 12 of the ECHR (right to marry) through an evolutive interpretation. However, the margin of appreciation doctrine allows for flexible responses to the specificity and uniqueness of Contracting States. Similarly, the funda- mental right to divorce can be recognized under Article 36(1) of the Korean Constitution. This article also suggests the possibility of interpreting Article 840(6) of the Korean Civil Code from the perspective of the irretrievable breakdown principle. Given the changes in divorce phenomena and legal systems in modern society, a reconsideration of the fault-based principle is necessary.