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韓三寅 濟州大學校 社會發展硏究所 1990 社會發展硏究 Vol.1 No.-
In this paper I compare and analyze the recent trends of theories and judicial precedents of Korea and Japan through the study of documents and precedents of the divorce claim by a guilty spouse. And after my concrete examination of its validity I explain the acceptance or rejection of the divorce claim by a guilty spouse. With relation to the cause of divorce, Korean civil law §840 has the combined form of fault based divorce ground' and 'no-fault based divorce ground'. But not being provided in the regulation, the acception or rejection of the divorce claim must be solved by theories and precedents. The past theories of this problem are divided into 4 kinds. Recently, the divorce claim by a guilty spouse, which has been rejected by Korean Supreme Court, is allowed under exceptional cases in which an innocent spouse wants to divorce. It is desirable that this problem should be solved through the harmony between the idea of 'no-fault based divorce ground' any the protection of an innocent spouse. Therefore, I think that the divorce claim by and part of two spouses should be accepted when the marriage breaks down irretrievably. But when it is against the true nature and morals of marriage and social order, the divorce claim by a guilty spouse must be rejected according to the Begat principles of 'abuse of right'. Finally, the restriction of the divorce claim by a guilty spouse should be relaxed a little more under the new divorce law which includes the rights to demand the division of property and the Visitation of children.