재판상 이혼에 관한 소송법적 고찰

There are divorce by agreement of a husband and a wife under Article 834 of the Civil Act and judicial divorce by a judgement of a family court under Article 840 of the Act as measures for dissolution of marriage relationship. The suit for divorce is a litigation for alteration of legal relations in a substantive law. The court get involved in the dissolution of marital relations which are fundamental order of society to find out objective truths and protect many interested persons in connection with the relations. But intentions of the parties should be respected, too. The subject-matter of the divorce action is rights to request for divorce as the legal status on which the dissolution of the marital relations could be sought and it is made separately per each cause for judicial divorce under the Article 840. Using these in sights, it would be of benefit to the formation and maintenance of the relations which are correspond with their substance. A husband and a wife who are the parties of the relations have standing to sue. Therefore, when one of them brings the divorce suit against the other, interests of the suit are recognized unless there are special circumstances, such as the disappearance of needs for the dissolution. Considering the necessity of respect for parties’ intentions of dissolving the marital relations, legal and institutional aspects that the divorce by agreement is granted, and practical affairs in family litigation procedure, it should be viewed that recognition of claims is allowed in the divorce action. By interpreting ex officio examination limitedly and discretionally, it is necessary to reckon that the court may decide whether it accepts the dissolution of the relations or not on the basis of the facts which are not contested in the parties, when it can obtain a conviction by only the averment and attestation offered by the parties. By compromising the needs to esteem their intentions of the dissolution and protect a third person on whom a final and conclusive judgment which has admitted a claim for divorce has the effect, it should be viewed that the court do not have to exercise its official authority when the parties have produced an averment and applied for examination of evidence which are necessary for its judgment. It is interpreted that the effect of the dissolution of the marital relations, which is caused by a divorce degree’s having become final and conclusive, reaches the third person as well as the parties. The divorce degree has res judicata on existence of the rights to request for divorce. When a judgment rejecting a claim for divorce has been made final and conclusive, it will not render the effect of the dissolution of the relations. It has just res judicata on non-existence of the rights. Article 21 of the Family Litigation Act, titled “Special Cases concerning Subjective Scope of Res Judicata” stipulates for the effect of the final and conclusive judgment in the family litigation cases of Category A or B. Under the legislation, it should be interpreted that the effect of the judgment means res judicata.