유책배우자의 이혼청구권과 파탄주의

Abstract

A matrimonial breakdown is an inevitable phenomenon in human life. In the most countries, the divorce system which both spouse dissolve the marriage by their own will is granted, and the style of divorce is different depending on a time and country. Therefore the freedom of divorce as well as the freedom of marriage which belongs to human basic right is also guaranteed naturally. In the meantime, since the korean divorce law was established by the influence of western divorce law, the law of matrimonial breakdown has been improved from the Fault for Divorce which includes that the divorce is possible only in case of either responsibility or both‘s to the No-Fault for Divorce which includes that the divorce is permitted only with objective fact regardless the responsibility on the matrimonial breakdown. This tendency means that government intervention has been reduced about the divorce itself. This means that government changed the policy from which does not allow the dissolution of marriage easily because a marriage should be protected as a basic system of family-a standard unit of society, to which allows the dissolution of marriage reasonably because there is no meaning not allowing divorce when matrimonial relationship has no possibility of restoration. But a carrying-out the No-Fault for Divorce has a possibility causing a miserable result to the spouse who has no responsibility on the matrimonial breakdown. So there should be a full consideration for the spouse who is in a weak-side after divorce socially, economically, and also proper responsibility of a concerned person should be required. Government should intervene positively about the matters in relation with the result of divorce such as bringing-up children, support for the former spouse, parental rights,right of access, dividing the property to protect the socially weak person. In the meantime, a precedent excludes a divorce claim of a fault-spouse strictly, excluding some exceptions, to protect a marriage system and a supporting claim of socially weak spouse, so the reason of divorce in the present divorce law trial based on the Fault-for Divorce as a rule and also recognized the No-Fault for Divorce exceptionally. Under the assumption that the improvement of divorce law has reflected the change of social environment and consciousness, actual relationship between married couple is regarded more important than the law of marriage itself in the present society. And when considering the change and developing speed nowadays, a precedent about a divorce claim of a fault-spouse would be needed to correct someday. Though it is difficult to expect, when a fault-spouse claim divorce, the reason of divorce replaces the Fault for Divorce by the No-Fault for Divorce immediately considering the reality of our society and sense of law, the No-fault for Divorce will be increased definitely in the near future. After all, a matter concerning the divorce claim by guilty spouse and the principles of matrimonial breakdown should be understood in view of the world-wide, common, and general increase of human right awareness and existence of human right concept, should be discussed under the assumption that a value which is aimed and admitted generally in human society should be accepted and reflected to a certain extent.