남북한 주민 간 혼인을 위한 법제화 방안

Abstract

This study shows the legal measures and tasks for the realization of marriage between North and South Koreans, assuming that inter-Korean relations progress and enter the inter-Korean coalition stage. The current laws relating to marriage between the two Koreas are generally similar. On the other hand, there are significant differences in matters related to divorce, child-rearing derived from divorce, and the right to claim property division. In North Korea, there are penalties for unfair marriage and divorce that are not found in South Korea. This is due to the peculiarity of the North Korean legislation that regards marriage and family life as objects of state control. Examining the cases of other divided countries, former East and West Germany applied private international law to solve the problem of legal conflict. Instead of adopting a unified legislative method for the marriage legislation between the residents of both sides, China and Taiwan have each legislated independently, but have coordinated the content through consultation. Marriage between North and South Cypriots has rarely occurred. If People between North and South Cyprus are married, EU law could be used as the governing law. The problem of legal conflict, which has been common in several divided countries, also occurs in marriages between North and South Koreans. As a way to solve this problem, it is possible to propose a measure to select one of South Korean law or North Korean law and apply it uniformly, a measure to determine the governing law by applying private international law, and a measure to enact a separate legal norm to determine the governing law. Among these three measures, the signing of an agreement between the two Koreas as a common norm applied to marriage and divorce between North and South Koreans would be a way to stably resolve disputes and to satisfy both South and North Korea. The policy on marriage between North and South Koreans should be promoted in the direction of ensuring the principle of individual freedom and gender equality, and providing consistent principles for determining governing law. It would be necessary to establish a document certification procedure between the two Koreas by establishing a joint certification office in the resident representative office. And an agreement between the two Koreas should be concluded to present the criteria for determining the governing law. After that, in order to implement the inter-Korean agreement, marriage-related laws of the two Koreas should be revised. By revising the Family Relations Registration Act in South Korea and the Citizen Registration Act in North Korea, the resident representative office should be able to handle the registration of occurrences and changes in marriage. In case of South Korea, legal measures would be necessary to give effect to reflect the exclusion of the application of Article 19-2 (1) to (5) of the North Korean Defectors Act. In case of North Korea, provisions to give effect to the inter-Korean Agreement should be newly established in the Family Law.