유책배우자 이혼청구의 제한과 파탄주의 지향

• 영문명: A Study on the Restriction of Divorce Filed by Marriage Partner at Fault and Path toward Breakdown Theory
• 발행기관: 한국가족법학회
• 저자명: 이희배(Lee Hee Bae) 김혜숙(Kim Hye Sook)
• 간행물 정보: 『가족법연구』家族法硏究 第29卷 2號, 257~294쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.07.31

영문 초록

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.

목차

Ⅰ. 판례의 연구

Ⅱ. 가사재판에서의 상담적인 접근

Ⅲ. 맺는말

참고문헌

Abstract

키워드

유책배우자의 이혼청구 기각주의(소극설) 제한적 파탄주의(제한적 긍정설) 파탄주의 지향설 허용가능한 3요건설 유예적 파탄주의 판례법리의 변천ㆍ발전 청구인용설(적극설) 가사재판에서 이혼상담과 아동상담의 필요성 divorce filed by marriage partner at fault Dismissal Principle or Passivism Limited Breakdown Theory Tendency Toward Breakdown Theory The Three Admissible Conditions Theory Suspended Breakdown Theory Change and Development of Precedent Case's Legal Principles Admission Principle or Activism Need for divorce counselling and child counseling in family trial