일본에서의 내연(內緣)에 대한 논의와 그 개념의 변화에 관한 고찰

Abstract

The form of de facto marriage refers to the non-registered combination between a man and a woman. Such a term was created during the Japanese colonial period when the colonial government forcibly converted the form of ceremonial marriage which had been the traditional marriage custom in Korea into that of registered marriage which was widespread in Japan at that time, after taking away the sovereignty of Korea. In terms of legal history, it is clear that such a term has a number of similar parts with the form of de facto marriage in Japan. Since the Meiji Civil Law in Japan, which was passed in 1885, focused on the application of registered marriage which provided the duty of registering marriage according to a legal process, it was required to deny the establishment of marriage in regard to the combination between a man and a woman according to the previous form of ceremonial marriage. Until that time, it had been possible for a man and a woman to keep a marital status without registering marriage. Such a form of marriage had greatly influenced the marriage custom for a long time. However, even if the form of registered marriage was applied by considering the beginning of the non-registered combination between a man and a woman, there was no measure in regard to the related problems. In other words, the legislators of the Meiji Civil Law predicted the occurrence of the non-registered combination between a man and a woman and regarded such a state as de facto marriage, ignorantly believing that the form of registered marriage would be gradually established no matter what. However, the form of registered marriage in Japan was not even established in 1920. Instead, it became a social issue. Such a state was caused by the social trend shown in the process of industrialization as well as various regulations shown in the Meiji Civil Law, which were passed by conservatives. As the form of de facto marriage became a social issue at the end, the Supreme Court in prewar Japan started to recognize the default or liability for damages based on the theory of 'marriage reservation'. Then, the courts in Japan recognized the liability for illegal actions by considering de facto marriage as a marriage-equivalent relationship based on the 'principle of de facto marriage', which was about the application of protection based on the legal form of marriage. Meanwhile, de facto marriage in Korea currently composes the legal principle of protection based on the principle of marriage which is equivalent to the registered one after going through the principle of marriage reservation, which is the legal principle of protecting de facto marriage in Japan. In Korea, there seem to be frequent cases of carrying out discussions after including various kinds of human combination in the West in the category of de facto marriage. However, it is necessary to think about whether it would be appropriate to execute such discussions without providing any precondition. In other words, it is necessary to carry out discussions think about how the human combination in the West has the same inevitable background as the form of de facto marriage in Korea, or how the Korean society understands such a human combination. However, such discussions have not been actively executed in Korea yet. Instead, there have been some discussions regarding cohabitation without marriage, which can be regarded as homosexual or heterosexual combination with no intention for marriage. It seems that the concept of cohabitation without marriage was introduced in Korea in 1980s. However, there were discussions about such a concept in Japan in 1970s. It was defined as 'de facto marriage' and the principle of protection for it was developed. In Japan, the unmarried relationship between a man and a woman can be classified into de facto marriage or engagement or adultery, while de facto marriage can be classified into 'de facto marriage of agreement' and 'de facto marriage' which can be regarded as homosexual or heterosexual combination with no intention for marriage. Such classification is based on the fact that de facto marriage in Korea is same as de facto marriage in Japan. Since such a fact has been applied for a long time, it has become quite necessary to consider the use of the term 'de facto marriage'. In particular, since the legal principle of protecting de facto marriage in Japan has been faced with various demands for social protection according to the diversification of human combination, it has become the standard of protection for de facto marriage which can be regarded as homosexual or heterosexual combination with no intention for marriage, causing related discussions to occur. Therefore, this study focuses on the discussions related to de facto marriage in Japan, which shares the historical basis with de facto marriage in Korea, and the principle of protection in regard to the change of such a concept, in order to make a decision about whether to include the human relationship in the West in the category of de facto marriage in Korea before carrying out any discussion.