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Court opinion's change in the responsible spouse's application of judicial divorce

  • DONG-A LAW REVIEW
  • 2009, (45), pp.225-261
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Lee Hye Jin 1

1동아대학교

Candidate

ABSTRACT

There are two types of legislation admitting judicial divorce ; the ruin system and the responsible system. In the former system one spouse can make an application for judicial divorce only if the marriage is ruined without asking the cause of breakdown. On the other hand in the latter system, a responsible spouse for ruining their marriage can't make an application and can't help keeping their legal marriage contrary to his or her wish. Supreme Court of Korea holds a fundamental opinion that a responsible spouse can't make an application for judicial divorce, but with a few exceptions. Criticisms are raised that such an opinion goes against global tendency in divorce cases and mars the right of one's pursuing happiness, and critics contend that judicial divorce should be allowed though a responsible spouse files a divorce suit. But if a judicial divorce is allowed according to the responsible side's filing without any limitation, it will coerce the other side(wife in most cases) a sacrifice and go against the principle of trust and good faith. So basically the Supreme Court's opinion about such cases should be maintained until the social maturity of the people and economic surroundings reach the level of accepting such cases without hesitation.

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