유책배우자의 이혼청구— 대법원 2015.9.15. 선고 2013므568 판결을 중심으로 —

Abstract

In principle, ‘fault-based divorce regime’, which states that spouses cannot claim divorce, is not required by law, but has been retained since admitted in the 1965 Supreme Court case. Is there a need to limit the divorce request in a trial only because of the spouse's divorce request? In other words, is it reasonable to reject a claim for divorce only if the spouse claims a divorce and the other person rejects it, even if the marriage relationship is broken?Our civil law, in consultation with both parties with respect to the method of divorce, is based on the agreement of divorce in accordance with the agreement of the divorce of the divorce system (Article 834 of the Civil Code) and, if there are certain reasons prescribed by civil law, Divorce system "(ci. 840). Of these, six cases of divorce are considered as reasons for divorce. The sixth is comprehensively defined as “when there are serious reasons why it is difficult to continue with other marriages.” In order for a spouse's request for divorce to be recognized, it must fall under No. 6, and the interpretation is left to precedent. This article starts from the consciousness that the reason for divorce in civil law is not reflecting the change of society and the reality of divorce. In order to develop the logic, I first examined the legal principles of marriage and divorce, reviewed the majority opinions and dissentative opinions centering on the Supreme Court case, and tried to find ways to improve the constitution. First, I would like to point out that marital relations require the efforts of both spouses, and it is sometimes difficult to hold either party's responsibilities because the relationship is broken. Second, there is a truth that only couples know in the work of couples, and this truth is a private life that should be protected, and it can deteriorate the relationship in the process of disclosure. It should be restrained. Third, it is necessary to deviate from the framework of ‘marriage is happiness and divorce is unhappiness’ and to organize the already unhappy marriage life smoothly. Fourth, even if marital relations are formed with trust and responsibility, divorce should be left to individual freedom, in principle, as marriage is an individual's liberty. In failure, neutralizing the cause of divorce, such as irreparable destruction, can reduce the moral shame associated with divorce and alleviate the pain and hostility that parties face during the trial. Also, by not incorporating responsibilities into determining whether to dissolve a marriage, it is possible to eliminate divorce from unnecessary divorce in the process of divorce and to focus more on the treatment and well-being of parties or minor children who may be affected by divorce. Since the fact that marriage and family relations are more important than formality, it is necessary to introduce disintegration in that the divorce process should consider more about what it will look like after divorce rather than obsessing with the past. The state or society does not have the authority to establish and enforce a desirable way of life. Thus, even though they do not want to, they should be bound by legal couples and should not be forced to become couples with loved ones. This violates human dignity and values, the right to pursue happiness, and the right to self-determination of marriage.