이혼 파탄주의 도입의 경우 무책배우자와 미성년 자녀의 법적 보호 방안 연구

In relation to judicial divorce, our Civil Code enumerates six grounds for divorce under Article 840, which is based on the principle of fault, rejecting the divorce petition of the spouse responsible for the breakdown of the marriage and allowing only the innocent spouse to file for judicial divorce. However, in foreign countries, with the increase in women's social participation and divorce rates, many divorce laws have adopted the no-fault divorce system, which recognizes divorce without questioning who is responsible for the breakdown of the marriage. However, despite the fact that, like most Western countries, women's social participation and divorce rates are significantly increasing in our country, our legal system still fundamentally adheres to the fault-based principle, and judicial precedents take a passive stance on this matter. The reasons generally cited for this include concerns about maintaining and protecting the stability of the family system if divorce becomes easier, and the lack of legal systems to protect innocent spouses and minor children. Countries that have adopted the no-fault divorce system have various legal mechanisms in place to protect innocent spouses and minor children. Some examples include harsh clause or prohibition of expulsion divorce, post-divorce maintenance systems or compensation benefits, special measures during the settlement of marital homes, and the right to claim damages against the party responsible for the breakdown of the marriage. Against this background, this paper examines the protective measures for innocent spouses and minor children that have been established in countries that have adopted the no-fault divorce system. It then reviews the feasibility of introducing these measures into our country and makes several suggestions within the possible scope.