동성혼에 대한 재고 ―현행법상 해석론을 중심으로―

Abstract

Unlike some countries, Korea is analyzing the possibility of same-sex marriage being included in the marital institution through law interpretation reflecting a concept of marriage that changes based on Korean civil law. By considering the consensus of marriage, the meaning of marriage in civil law was highlighted, the public and public moralities of the marriage were reconsidered, and whether same-sex union could be included was confirmed. Although the customs and institutions of marriage have changed in different cultures and times, the notion that marriage basically means the union of men and women has been maintained. However, modern families are becoming more personalized, equalized, and diversified, so the traditional view of marriage has changed. Since same-sex marriage is a representative discussion of this shift, this paper deals with the modification of the marriage concept as a starting point for discussing same-sex marriage. Marriage has a stable and lasting personality, and is a partnership that establishes a family through childbirth and nurturing. Most modern civil codes, including the Korean Civil Code, presupposed specific marriage concepts at least at the time of enactment, but the transition to a nuclear family society, the increase of dual-earner couples, the increase in divorce rates, the decrease in the marriage rate and fertility rate, the increase in the number of couples without children, the factual marriage or the concept of marriage, which is typical of changes in social reality, including the increase in non-marriage and domestic partnerships, and the expansion of adoptive families, have also been extended. The discussion of same-sex marriage is a controversial discourse in theological, philosophical, sociological, and anthropological terms, but ultimately leads to legal issues. Marriage is a legal system that defines its requirements and effects in civil law and is a legal act under family law. In this age, where 29 countries have legalized same-sex marriage, the age-old concept of marriage as the union between the opposite sexes is blurred, and same-sex marriage is included in the concept of marriage. The concept of marriage is not fixed, but variable, and does not necessarily include rational union as its conceptual sign. This paper likewise identifies the position of the intention in marriage in the process of approaching same-sex marriage, focusing on the meaning of marriage with both a private contract and public and private properties as a compulsory regulation. It was concluded that same-sex marriage can be recognized as marriage only by the current civil law interpretation. Whatever the social meaning of marriage, marriage is a legal relationship that defines the status of spouses and rights obligations in civil law. The legal meaning of marriage, then, cannot be considered apart from the rights obligations that civil law provides for the effect of marriage. Legal opinions reflect this view. If one views the intention of marriage as a willingness to enlist the legal effect of marriage, one will be able to understand the meaning of marriage more normally and include same-sex marriage in the marriage agreement. However, seeing the intention of marriage as a legal act, motivating the effect of marriage, does not replace the meaning of marriage simply with the obligation of individual rights. Same-sex couples, like many who wish to have a heterosexual marriage, want marriage for symbolic and realistic purposes. Therefore, the most important part of the intention of marriage is the duty to live as a spouse, the right to inherit as a spouse, and the right to inherit from that position. Indirectly, such couples desire social recognition and a sense of belonging. In terms of content, agreement to same-sex marriage can be judged more normally.