혼인신고에서의 쌍방출석주의와 공증 ―제도 도입의 필요성과 예외의 설정을 중심으로―

Abstract

The Korean Act on Registration of Family Relationship does not require both parties wishing to marry to attend before Family Relationship Registration officers when they report marriage, so that there is no way for officers to confirm their intention of marriage at the time of marriage registration. As a result, not a few of marriages are reported against his/her own will. The reason for not requiring the attendance of the parties was to settle the marriage report system in time, however it is no longer suitable. Considering the long tradition of common law marriage in Korean society, the Supreme Court has held that the marriage report is valid even though the other party has never given the consent to the report if they has been playing their role as a husband and wife in reality. But the number of people who deliberately do not report marriage is increasing, because they do not want to enjoy the effect of marriage even if they are in a de facto marriage relationship. In such a situation, the current law may infringe the freedom of not-to-marry. Therefore, in this paper, we propose to revise the Act to require both parties to attend for marriage report and to be screened their intention of marriage by officers, or submit an affidavit by notary if they can not attend by reason of detention, military service, hospitalization or inability to act due to old age, disease, etc.