파탄주의로의 전환을 위한 시론

• 영문명: An Opinion on the Introduction of No-fault Divorce System: Is the Introduction of Harshness Clauses and a Post-divorce Maintenance System Necessary?
• 발행기관: 한국가족법학회
• 저자명: 현소혜(SO HYE HYUN) 정다영(DAYOUNG JEONG) 손명지(MYUNG JI SON)
• 간행물 정보: 『가족법연구』第38卷 2號, 145~206쪽, 전체 62쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.07.31

국문 초록

In 2015, the Supreme Court ruled that the change of the current fault-based divorce system to the no-fault divorce system cannot be allowed in the absence of complementary measures to protect the weak, such as harshness clauses or post-divorce maintenance, adhering to the position that the fault-based divorce system is also necessary to protect the marriage system. This paper aims to argue that the ruling is incorrect through a comparative legal study of the divorce systems in Germany, France and the United Kingdom. Following the grand political strife, Germany introduced a no-fault divorce policy in 1976, France in 1975, and the UK in 1973, with harshness clauses and strengthened post- divorce maintenance in the form of lifetime regular payments as a compromise, however, the former was rarely used and was eventually abolished in France and the UK, while the latter led to a steep decline in the marriage rate and was replaced with a weakened post-divorce maintenance system in the form of a lump sum payment. Moreover, statistics have found that the no-fault divorce system does not increase the divorce rate. In Korea, the doctrine of abuse of rights under Article 2 of the Korean Civil Act can serve as harshness clauses, and the property division system can effectively handle the post-divorce maintenance. Therefore, we no longer need to hesitate to transition to a no-fault divorce system.

목차

Ⅰ. 서 론

Ⅱ. 독일의 파탄주의 법제

Ⅲ. 프랑스의 파탄주의 법제

Ⅳ. 영국의 파탄주의 법제

Ⅴ. 결론에 갈음하여: 비교법적 검토로부터의 시사점

키워드

이혼 유책주의 파탄주의 가혹조항 이혼 후 부양 divorce fault divorce system no-fault divorce system harshness clause alimony(post-divorce maintenance