유책배우자 이혼청구의 제한과 파탄주의 지향 - 청구인용의 법리와 관련한 판례의 동향을 중심으로 - [대상판결: 대법원 2010.12.9(2009므844) 판결: 판공, 2011.1.15, 제362호]

Abstract

1. “Filing divorce by a marriage partner at fault” refers to the situation when one who is mainly or wholly at fault of breakdown of marriage files a divorce to the counterpart on the basis of the fault. Under the Korean divorce law, the court is troubled to allow a divorce filed by the partner who is at fault. While the original verdict allowed the filing, to be studied verdict remanded after quashing the files motion. The following are points need to be discussed in the study: 1) The verdict that remanded after quashing the original verdict, which allowed the filing of divorce by a marriage partner at fault, should be examined whether it reversed the precedent position of “limited breakdown theory”—in principle dismisses all filings by the partner at fault, with only few exceptions. 2) The original verdict that allowed the filing by a partner at fault should be examined whether the court misinterpreted existing legal principles. 3) The symbolic meaning and the nature of the verdict that remanded after quashing the original verdict should be discussed further. 2. The precedent case in principle does not allow filing of divorce by a partner at fault but allows exceptions. The to be studied verdict remanded after quashing did not reverse the precedent position. 3. The original verdict that allowed filing of motion by a marriage partner at fault did misinterpret precedent case’s legal principles. However, the ruling that dismissed the original verdict and remanded after quashing should be understood as a message to reexamine the breakdown of marriage but not as a dismissal of divorce motion itself. 4. Since 1995, the discussion on “suspended breakdown theory” emerged to the surface. The theory allows filing of divorce motion by marriage partner at fault but postpones exceptional cases. Early 2005 marked the revolutionary turning point for institutional environment of Korean family law. With this change in tide, divorce law is also making an attempt to change its path significantly toward breakdown theory when marriage partner at fault files motion. 5. The ruling suggested the necessity of marital counseling program and child counseling as a means of prevention and reconciliation of marriage disputes.