전환기의 가족법과 파탄주의 이혼법의 탄생

No aspect of modern family law has received more public attention than sharp rise in divorce rates that began in the mid-1960s in most of the industrialized countries and 1990s in Korea. Within a relatively short period of time, marriage was transformed all over the developed world from a legal relationship terminable only for serious cause to one that is terminable at will. The countries with which I am concerned, have replaced their old, strict divorce law. The common characteristics of the new laws are the recognition or expansion of non-fault grounds for divorce and the acceptance or simplication of divorce by mutual consent. Behind the broad similarities however, there were significant differences among the new statutes of England, France, West Germany, Sweden and the American states. There was a good example of the transformation of Family law in Korea. In the beginning of the Chosun dynasty, there were big attempts to change the existing practice, so called amguiyeoga (男歸女家), of the newly-wed husband taking residence in his wife’s family’s residence to a new practice called Chinyeong-jae(親迎制). It was the first transformation of marriage system on the Korean history. But the attempts did not succeed in national range, but only Royal Family. In the 16th century, by the urge of several Neo-Confucian scholars, a new marriage practice, so called Ban-Chinyeong(半親迎), was settled, in which the event of the newly-weds’ official meeting with each other that had usually been arranged upon the third day after the marriage ceremony was arranged upon the very day of marriage. In England, The Family Law Act 1996 was intended to revolutionise the divorce process. It was passed by Parliament in 1996 but, because of the significant changes it would bring about, at the time it was not expected to brought into effect until 1999 or 2000. Unfortunately, the results from research conducted into Information Meetings was disappointing this is one of the reasons for the new legislation now being put back indefinitely. However, Part IV of the Act covering provisions on Domestic Violence was implemented in 1997. Nowadays the second transformation of marriage system is on the way. So studying the experience of the Chosun dynasty and English Family law Act 1996 will be very important material to the lawyers and scholars. At present, No-Fault divorce is being settled down around the world. No-fault divorce is a divorce settlement reached after an exclamation of “permanently broken marriage” with no hope of reconciliation, by both or one of the spouses. The divorce court grants it after making sure for itself that there is no hope of reconciliation what so ever. A couple in agreement over a no-fault divorce can discuss possessions settlement and other details in an out of court settlement. The trial and error of Chinyeong-jae and Family Law Act 1996 in England will give us important teaching in the transformation of family law on this 21st century.