Comparative Family Law, Korean Family Law and the Missing Definitions of Family
0
조회
0
다운로드
2
인용
0
참고문헌
키워드
초록
This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage. This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear familiesdeserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families. The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families. These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair. These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a "family"that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.
Abstract
This article uses comparative law to analyze the concept of ‘family’. In particular, the research focuses on how family is defined when a family group assembles outside of a nuclear marital family. The article discovers that ‘family’ is rarely defined outside of the concept of marriage in modern legal codes. However, eight characteristics and identifying behaviors of families can be found in the analysis of family law. These eight concepts are used to rebuild a potential definition of family that does not require the act of marriage. This article proposes that family law should include a parallel definition for families that do not meet current marital definitions of family. This article does not advocate changing current marriage codes; it merely suggests adding room for non-nuclear families in family law. These other, non-nuclear familiesdeserve legal support and recognition. It is time for family law to recognize that all families need legal protection and legal affirmation as families. The reason to focus on family outside of the concept of marriage is that many family-type groups today fulfill the role of family life without legal recognition. These families serve broader societal goals of raising children, of providing for the elderly, and of sharing the burdens and responsibilities of life in a small group setting. Family law should extend the legal notion of family to include a wider array of options for non-nuclear families. These types of families are all ‘normal’ families in some sense of the idea of family, but they may simply lack two central ingredients: marriage and a nuclear spousal pair. These types of families should have as much legal right to formally exist as families based in nuclear marriage and sexually-based procreation. Specifically, there should be a legal entity called a "family"that serves a small group of individuals living in some form of interdependency under a common roof. The basic argument is to provide a parallel option for these types of alternative families alongside the traditional marriage-based family option.
참고문헌 (26)
- "Lex duodecim Tabularum (Twelve Tables of Roman Law)"[URL]
- "Justinian - The Institutes of Justinian " Iustiniani Institutiones""[URL]
- "Code civil 1804. First Book, Title 5, "Du Mariage""[URL]
- "Code civil 2011. Laurent Leveneur. LexisNexis Litec", ~ (2010)
- "Concordat between France and the Holy See of the Vatican. 1801. Revue de droit canonique"[URL]
- Act No. 471, February 22, 1958. As amended through Act No. 8720, , 2007
- "Amended by Constitution No. 10", 1987
- "North Carolina General Statute §51 "Marriage""[URL]
- "North Carolina General Statute §4 "Common Law""[URL]
- "Family Code. State of California. Office of Legislative Counsel"[URL]
- Franklin Fire Insurance Company v. W. W. Shadid, "Franklin Fire Ins. Co. v. Shadid, Tex. Com. App., 68 S.W. 2nd 1030", ~
- "The People of the State of New York v. Aira Hasse People v. Hasse. 291 N.Y.S. 2nd 53", ~
- Mary E. Hartley, "Hartley v. Bohrer, 11 P. 2nd 616", ~
- Frederick B. Collins, "Collins v. Northwest Casualty Co.,39 P. 2nd 986", ~
- Mi-Kyung Cho, "Korea: The 1990 Family Law Reform and the Improvement of the Status of Women", University of Louisville’s Journal of Family Law, 33, pp.431~444 (1995)
- Joëlle Godard, "PaCS Seven Years On: Is It Moving Towards Marriage?", International Journal of Law, Policy, and the Family, 21, pp.310~321 (2007)
- Claude Martin, "The PaCS and Marriage And Cohabitation in France", International Journal of Law, Policy, and the Family, 15, pp.135~158 (2001)
- Kurt Steiner, "The revision of the Civil Code of Japan: Provisions affecting the family. The Far Eastern Quarterly", Now known as the Journal of Asian Studies, 9, pp.169~184 (1950)
- Hyunah Yang, "Changing Position of Women in Korean Family Law", 젠더와사회, 6(2), pp.50~ (2007)
- Jinsu Yune, "Tradition and the Constitution in the Context of Korean Family Law", The Journal of Korean Law, 5, pp.194~212 (2006)
- "efining Marriage: Defense of Marriage Act and Same-Sex Marriage laws", National Conference of State Legislatures (2012)
- "Civil Unions & Domestic Partnership Statutes", National Conference of State Legislatures (2012)
- Co-Authors Joseph R. Nolan, "Henry Campbell Black, In Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern" (1990), West Publishing Co
- Chongko Choi, "Law and Justice in Korea: South and North", pp.170~171 (2005), Seoul National University Press
- Introduction au droit américain. 3rd Ed, "Law of the United States", pp.2010, Peter Hay
- Konrad Zweigert, "The Spirit and Essential Features of the Code Civil, In An Introduction to Comparative Law 3rd Edition" (1998), Clarendon Press