법이론과 법정책의 관점에서 접근한 새터민 이혼소송

Abstract

Last June in 2007, the Family Court had made decision to approve the North Korean refugee’s claim of divorce with one’s spouse who is still left behind in North Korea. Such tendency of the Family Court would be gratified by the North Korean refugees desiring to settle down in South Korean society in relatively short time. Nevertheless this court decision has raised numerous theoretical questions that cannot be easily solved. First of all, the question of whether North Korea falls under the jurisdiction of South Korea may be aroused. The problem then gets more complicated, considering the unique context of relations between the South and the North. It is because, although the North falls under the jurisdiction of the South from her standpoint, the North Korea is recognised overseas as one separate state according to international law. In other words status of the North Korea splits into two: one would be domestic status while the other is overseas status. For that reason, controversies arouse over the matter of whether to apply domestic law or international law(private international law, to be more specific). I reckon the such problem occurs because the North and the South is currently going under the steady process of unification. Hence problem like this would not be fundamentally solved, simply by enacting the Article 19-2 in the North Korean Refugees Protection Act as an exemption to legitimate divorce. This article aims at examining both theoretical and practical controversies over interpretation of law. Primarily in the section II of this article, the focus was made on the unique legal status of North Korea. Then section III examines the way North Korean Refugees Protection Act deals with divorce claims of North Korean refugees, as well as the problems that may arouse from it. Finally in section IV, I had tried to present desirable solutions to such controversial issues.