裁判上離婚에 관한 硏究 : 民法第840條第6號 中心으로 = STUDY OF JUDICIAL DIVORCE

개발제한구역 해제지역의 관리와 개선 방안을 연구했다.

Introduction Most countries have two or three kinds for the divorce. In many Asian, European and North American countries, the system of a judicial separation has been legislated under the divorce policy of checking divorce practices, or it represents a term of reconsidering the divorce problem. The teleologic jurisprudential trend of the modern divorce law which insists "allow the divorce to those failed in marriage" presupposes the feasibility of a second marriage for the happiness of a husband and wife, but it is far from to treat the divorce as an act of good faith or that for the order and public benefit of the human society. This concept was generally developed here.

In this age of the twentieth century, in which the human dignity and the equality of both sexes are basically emphasized, a divorce can be justified as one without contradiction to its intrinsic nature only when the man and woman concerned divorce each other without giving any damage to the divorcees themselves and their children. It is pointed out here, however, that most countries have failed in ousting the long-cherished thought of man's superiority over woman. Main Chapters It represents the main part of this article in which a legislative consideration was made on a variety of contributions to the Divorce Law of Korea.

In Chapter 3, the judicial divorce is considered placing its main emphasis on the analysis of the causes of divorces and the examination of mutual positions of divorcees. In other words, to decide the limitation to the failure-ism which points to the possibility of divorce, analysis was made on scholarly views and judicial precedents on the casual relation between the limited and illustrative doctrine of liability Section 1 to 5, Article 840, Civil Law and abstractive failure-ism(Section 6) in relation with the cause of divorces.

In Chapter 4, a consideration was made, with some concrete standards presented, on the Section 6, Article 840, Civil Law, which points toward the feasibility of divorce under the above theory of failure-ism concerning the cause of divorce. In Chapter 6, a consideration was made on "the effect of divorce." A requirement was made to ordain an imperial law for the peace and happiness of divorcee themselves and their children. Legislative contradictions found in the regulations on the consolation money were pointed out here through the statistical study on those regulations and actual records.

Particularly in Section 3, the writer's opinions on the necessity of the right of claiming property separation with concrete examples, as well as on the underdeveloped nature of the Civil Law and its revision were expressed. In Chapter 7, it was pointed out that the marriages without having marriage certificates by the court were very common, and in those cases both spouses could not be protected for their and their children's well-being. So the writer emphasized her opinion on giving the same rights and responsibilities to the substantial marriage status as the marriage by law.

Conclusion As we have developed the theory of the equality of both sexes, the unbalance between the Constitution Law and the Family Law was pointed out, and the necessity of improving the legal status of woman and its casual relation with the Family Law were emphasized. In Section 3, pointing out the danger of the divorce by agreements, by necessity we are bound to expel the divorce by consent and introduce the limited divorce system, having been applied in the countries with the divorce law of superior position, with the purpose of preventing this society from the evil of increasing divorce rate.

In addition to this article, a conclusion was made by the actual living verdict of divorces collected and classified by sections of regulations on the causes of divorce, based on the collection of judicial precedents centering on the Section 6, Article 840, Civil Law and divorce suits records for the period from 1966 to 1974; the writer shows percentage and the amounts of consolation money recognized by court.

목차 序論 第1章 各國의 離婚法槪觀 第1節 各國의 離婚法의 趨勢 = 4 1. 歐羅巴 = 4 2. 亞細亞 = 7 3. 別居制度 = 10 第2節 名國의 離婚制度 = 12 1. 佛蘭西 離婚法 = 13 2. 西獨 離婚法 = 19 3. 英國 離婚法 = 23 4. 美國 離婚法 = 28 5. 自由中國 離婚法 = 36 6. 香港 離婚法 = 42 7. 말레지아 離婚法 = 44 8. 싱가포올 離婚法 = 47 9. 인도네시아 離婚法 = 49 10.比律賓 離婚法 = 53 11. 印度 離婚法 = 57 12. 캄보디아 離婚法 = 62 13. 泰國 離婚法 = 66 14. 日本國 離婚法 = 66 第2章 韓團의 裁判上離婚 第1節 序言 = 74 第2節 離婚原因規定 = 76 第3節 離婚原因各號의 相互間의 地位 = 79 第4節 裁判上離婚實態 = 82 第5節 裁判上離婚率 = 85 第3章 民法第840條第6號의 解釋 第1節 序言 = 92 第2節 「婚姻을 繼續하기 어려운 重大한 事由」= 93 第3節 民法第840條第6號의 性格과 私見 = 96 第4節 判例에 나타난 「重大한 事由」의 內容 = 100 第4章 有賣配偶者의 離婚請求可否論 第1節 判例·學說의 動向 = 109 第2節 有責配偶者의 離婚請求에 관한 判例 = 113 1. 有責配偶老의 離婚請求를 認容한 事例 = 113 2. 有責配偶老의 離婚請求를 排斥한 事例 = 117 3. 私見 = 122 第5章 離婚의 效果 第1節 一般的 效果 = 134 1. 夫婦關係 = 134 2. 親子關係 = 135 3. 財産關係 = 137 第2節 離婚配偶者에 대한 財産分與請求權에 관한 各國의 立法例 = 139 1. 序 言 = 13