전환기의 유럽 이혼법 = The European Divorce Law in Transition

다국어 초록 (Multilingual Abstract)

In 2001, an international group of scholars established the Commission on European Family Law(CEFL). This Commission initiated a reserch project based on transnational collaboration that was generally believed to be impossible to realize in Europe. The CEFL’s main objective is the creation of Principles of European Family Law which aim to establish the most suitable means for harmonization of Family law within Europe. The Commisson on Europen Family Law’s first principles regarding Divorce and Maintenance between Former Spouses were published in December 2004. The principles clearly favour consensual divorce and encourage the spouses to come to an agreement. Such an agreement, however, is not a prerequiste for the divorce. Rather, where this is necessary, the competent authority decides on all child-related and economic consequences of the divorce.
The British Government reformed the Family Law in 1969. According to Matrimonial Causes Act 1973, the irretrievably brokedown is the sole ground for divorce. a petiton for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably, Subject to five facts (Adultery, Respondent’s behavior, Desertion, Two years’ separation and respondent’s consent to decree, five years’ separation). The British Government reformed the Family Law in 1996 again. In Family Law Act 1996, new trial or procedure was designed, which was the information meeting, period for reflection and consideration etc... Though the pilot program for Family Law Act 1996 made the British Government not implement Family Law Act 1996 in 2001, but the Family Law Act 1996 was the interesting trial.
France’s divorce is pronounced by mutual consent, fault, termination of common life. Ex-spouses may remarry once the final divorce is pronounced. If the termination of marital life has an negative effect in either of the ex-spouses, he/she may , if desired, requst payment of a compensatory allowance. Such an allowance should be equal to whatever it would havld ben if life together still existed. The amount of the compensatory allowance is fixed by the judge, and can be revised only in very exceptional cases. In case custody and ompport of children, Judges tend mor allowmor ato awwan custody to the mother and the father jointly, provided the two parties ar ain be revised He/she maintains responsibilthe nd omppochildren’s car alloweducation, and is restored to pay child support and/or alimony. The amount of such obligations of support can be increased in accordance with cost of living, upon the request of the parties or directly upon the instructions of the judge.
The German Government reformed the Family Law. In 1976, which was implemented in 1977. Specially the divorce part of German Civil Code repealed the existing system, so called the traditional fault based divorce system. And the traditional fault system was replaced by no-fault divorce system which rely on the sole ground of divorce, the irreparable breakdown of marriage. It lays down only in the situation that a marriage may be dissolved when it has irreparably broken down. The new law made the Statutory Presumptions of Marital Breakdown which is sufficient that the spouses live apart. At once the German Government made the new legal consequence of divorce, for example, the spouse’s maintenance obligation after divorce and the adjustment of pension rights. The German Divorce Law have been managed unlike France and England’s Divorce Law.
The CEFL believes that the harmonization of family law will provide an adequate legal basis for the EU. the CEFL’s activities are unique in Europe. The harmonization of family law can be seen as an ultimate step on the road towards creating a truly people-frinendly in Europe. These help us study our divorce law and will have suggestive and significant influence in amending the Korean divorce law.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. 유럽이혼법 원칙과 영국ㆍ프랑스ㆍ독일의 이혼법
• Ⅲ. 비교고찰
• Ⅳ. 結論
• 참고문헌
• 〈ABSTRACT〉

참고문헌 (Reference)

• 1 명순구, "프랑스 이혼법 : 그 이념과 규범구조" 비교법 실무연구회 5 : 2001
• 2 박동섭, "친족상속법 개정판" 박영사 2007
• 3 김주수, "친족․상속법 제9판" 법문사 2008
• 4 Mary Ann Glendon, "전환기의 가족법" 길안사 1996
• 5 윤영미, "영국 가족법의 발달과 전망" (13) : 165-, 1999
• 6 이화숙, "비교 부부재산관계법" 세창출판사 2000
• 7 문영화, "독일법상 이혼한 배우자간의 부양의무" 서울가정법원 4 : 1998
• 8 조은희, "독일법상 이혼시 잉여의 청산과 그 문제점에 관한 고찰" 한국가족법학회 16 (16): 9-340, 2002
• 9 조미경, "독일 이혼법에 있어서의 年金淸算(Verorgungausgleich)제도" (6) : 1992
• 10 한복룡, "가족법강의" CNU press 2007
• 11 문영화, "獨逸의 離婚制度" 比較法實務硏究會 5 : 2001
• 12 "http://www.opsi.gov.uk/acts"
• 13 "http://www.hcch.net."
• 14 "http://www.gesetze-im-internet.de/englisch_bgb/index.html"
• 15 "http://www.coe.int."
• 16 "http://www.ceflonline.net"
• 17 "http://lexinter.net/ENGLISH/civil_code.htm"
• 18 Max Rheinstein․Mary Ann Glendon, "West German Marriage and Family Law Reform" 45 (45): 1978
• 19 Mary Ann Glendon, "The Transformation of Family Law" The University Chicago Press 1984
• 20 W. Müller-Freienfels, "The Marriage Law Reform of 1976 in the Federal Republic of Germany" 28 (28): 1979
• 21 Tina Bon, "Family Law" Oxford University Press 2005
• 22 Wilfried Schlüter, "BGB-Familienrecht" C. F. Müller Verlag 10-, 2003
• 23 이화숙, "1996년 영국의 개정 이혼법의 폐기와 프랑스의 이혼법 개정이 주는 시사점" 한국비교사법학회 12 (12): 263-301, 2005