협의이혼의 요건과 그 瑕疵에 관한 쟁송절차

According to the current Civil Code(hereinafter “CC”), 4-type divorces are recognized : by agreement, by mediation, by the court order substituting for mediation and by judgment. The provisions in CC about divorce by agreement(hereinafter “DA”) have changed frequently for several decades. So first of all, this paper explores the changes of such provisions, substantive and formative requisites in DA. Pursuant to the current CC, to recognize as a lawful divorce, there need a sincere agreement to divorce between both sides with mental capacity as a substantive requisite, and some important procedures - the divorce guide provided by the Court and the 1 to 3 month consideration period, an agreement(or the Court Order) about the method of bringing up children and a report to the concerned Office on condition of acceptance, etc. - to go through under the supervision of the Family Court as a formal condition. There might be a defect in divorce agreement. In that case, several types of lawsuit are possible according to the extent of the defects, for example a divorce nullity suit and a cancellation of divorce by agreement suit. This paper explores also the meaning, requisites, standing, jurisdiction and effect of such suits, with analyzing the cases concerned. The Judicial Statistical Yearbook shows an about 6% point decrease of the report numbers of DA in 2008 in comparison with last year. I think that some provisions of CC revised in 2008 for DA including the consideration period might have contributed to the decrease. But it is not sufficient only to revise such provisions or establish a new system. The Family Court should exert its power of review during the procedure of DA, to diminish the victimized party, and should not hesitate to declare nullification or cancellation of divorce if there is any defect in agreement.