한국에서의 호모사케르: 동성혼
Homo Sacer in Korea: Same - Sex Marriage -Is Same- Sex Marriage in Korea The elephant in the room?
0
조회
0
다운로드
14
인용
0
참고문헌
키워드
초록
Generally speaking, Same-Sex Marriage in Korea cannot be admitted as legal marriage under the Korean Constitution in that marriage should be union between a man and a woman according to the Korean Constitution article 36 section 1 and several decisions of the Korean Constitution Court. However, in the 21st century, it has become popular to describe marriages as either traditional or non-traditional. Traditional marriage has been conservatively described as being a life-long legal union between one man and one woman for the support of family and presumably offspring. With the respect of human rights and the widespread acceptance of Birth control(ex, IVF, Surrogate mother), the definition of traditional marriage has become less narrowly defined as a legal bond "between a man and a woman". Non-traditional marriage assumes a conjugal relationship other than that assumed in the traditional definition, and most commonly refers to Same-sex marriage. Same-sex marriage(also called gay marriage) is a legally or socially recognized marriage between two persons of the same biological sex or social gender. Same-sex marriage is a civil rights, political, social, moral,and religious issue in many nations. The conflict arises over whether same-sex couples should be allowed to enter into marriage, be required to use a different status (such as a civil union, which usually grants fewer rights), or not have any such rights. A related issue is whether the term "marriage" should be applied. The debate regarding same-sex marriages includes debate based upon social viewpoints as well as debate based on majority rules, religious convictions, economic arguments, health-related concerns, and a variety of other issues. Support for same-sex marriage is often based upon what is regarded as a universal human rights issue, mental and physical health concerns, equality before the law, and the goal of normalizing LGBT relationships. Opposition to same-sex marriage arises from a rejection of the use of the word "marriage" as applied to same-sex couples or objections about the legal and social status of marriage itself being applied under any terminology. Other stated reasons include direct and indirect social consequences of same-sex marriages, parenting concerns, religious grounds, and tradition. Supporters of same-sex marriage often attribute opposition to it as coming from homophobia or heterosexism and liken prohibitions on same-sex marriage to past prohibitions on interracial marriage. In my opinion, same-sex marriages take the view that the government should have no role in regulating personal relationships, while others argue that same-sex marriages would provide social benefits to same-sex couples. Because there is no evidence that society needs to maintain "marriage as an exclusively heterosexual institution", and, further, that same-sex unions can "contribute to stable and humane societies." Also, there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage. Though opponents to same-sex marriage argue that same-sex marriage harms the family structure of society, and that same-sex marriages deprive children of either a mother or a father, I think that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. If their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families. I argue against the position that same-sex marriage would be required to use a different status (such as a civil union, which usually grants fewer rights), or not have any such rights and describe the prohibition of same-sex marriage as devaluing the korean principle of equal treatment and the content of the right sexual autonomy that comes from the human dignity and the pursuit of happiness. Same-Sex Marriage in Korea must not be the elephant in the room. Same-Sex Marriage should be protected by legislation. Through the protection, Same-Sex Marriage in Korea would be get out of the category of 'homo sacer'. The scope of protection is entirely up to the discretion of the legislature based on ASSMS(Assessing Attitude Toward Same - Sex Marriage Scale).
Abstract
Generally speaking, Same-Sex Marriage in Korea cannot be admitted as legal marriage under the Korean Constitution in that marriage should be union between a man and a woman according to the Korean Constitution article 36 section 1 and several decisions of the Korean Constitution Court. However, in the 21st century, it has become popular to describe marriages as either traditional or non-traditional. Traditional marriage has been conservatively described as being a life-long legal union between one man and one woman for the support of family and presumably offspring. With the respect of human rights and the widespread acceptance of Birth control(ex, IVF, Surrogate mother), the definition of traditional marriage has become less narrowly defined as a legal bond "between a man and a woman". Non-traditional marriage assumes a conjugal relationship other than that assumed in the traditional definition, and most commonly refers to Same-sex marriage. Same-sex marriage(also called gay marriage) is a legally or socially recognized marriage between two persons of the same biological sex or social gender. Same-sex marriage is a civil rights, political, social, moral,and religious issue in many nations. The conflict arises over whether same-sex couples should be allowed to enter into marriage, be required to use a different status (such as a civil union, which usually grants fewer rights), or not have any such rights. A related issue is whether the term "marriage" should be applied. The debate regarding same-sex marriages includes debate based upon social viewpoints as well as debate based on majority rules, religious convictions, economic arguments, health-related concerns, and a variety of other issues. Support for same-sex marriage is often based upon what is regarded as a universal human rights issue, mental and physical health concerns, equality before the law, and the goal of normalizing LGBT relationships. Opposition to same-sex marriage arises from a rejection of the use of the word "marriage" as applied to same-sex couples or objections about the legal and social status of marriage itself being applied under any terminology. Other stated reasons include direct and indirect social consequences of same-sex marriages, parenting concerns, religious grounds, and tradition. Supporters of same-sex marriage often attribute opposition to it as coming from homophobia or heterosexism and liken prohibitions on same-sex marriage to past prohibitions on interracial marriage. In my opinion, same-sex marriages take the view that the government should have no role in regulating personal relationships, while others argue that same-sex marriages would provide social benefits to same-sex couples. Because there is no evidence that society needs to maintain "marriage as an exclusively heterosexual institution", and, further, that same-sex unions can "contribute to stable and humane societies." Also, there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage. Though opponents to same-sex marriage argue that same-sex marriage harms the family structure of society, and that same-sex marriages deprive children of either a mother or a father, I think that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. If their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families. I argue against the position that same-sex marriage would be required to use a different status (such as a civil union, which usually grants fewer rights), or not have any such rights and describe the prohibition of same-sex marriage as devaluing the korean principle of equal treatment and the content of the right sexual autonomy that comes from the human dignity and the pursuit of happiness. Same-Sex Marriage in Korea must not be the elephant in the room. Same-Sex Marriage should be protected by legislation. Through the protection, Same-Sex Marriage in Korea would be get out of the category of 'homo sacer'. The scope of protection is entirely up to the discretion of the legislature based on ASSMS(Assessing Attitude Toward Same - Sex Marriage Scale).
참고문헌 (76)
- 姜達天, "同性愛者의 權利保護", 법제연구, (23), pp.83~104 (2002), 한국법제연구원
- 강달천, "동성애자의 기본권에 관한 연구", 박사, pp.2000
- 계희열, "헌법학(중)" (2005), 박영사
- 고종주, "성전환자(transsexual)에 대한 법적 인식과 처우: 트랜섹슈얼의 법률상 지위에 관한 선례와 이론적 검토", 사법논집, 35 (2002), 법원도서관
- 고창현, "사실혼에 관한 비교법적 고찰", 법조, 12(1) (1972)
- 김민중, "동성애관계의 법적 보호에 관한 시론적 검토", 인권과 정의, (333), pp.135~ (2004), 대한변호사협회
- 김민중, "독일의 새로운 가족법상의 제도로서의 동성사이의 생활동반자 관계", 가족법 연구, 15(2) (2001), 한국가족법학회
- 김병록, "동성결혼의 헌법문제", 동아법학, (43), pp.1~27 (2009), 법학연구소
- 김태륜, "동성혼인문제의 법률적 고찰", 가족법연구, 13 (1999), 한국가족법학회
- 김용한, "친족상속법" (2003), 박영사
- 김용화, "가족에 대한 법적·사회적 개념의 통합 필요성", 가족법연구, 22(2), pp.1~28 (2008), 한국가족법학회
- 김주수, "친족상속법" (2008), 법문사
- 김희자, "서구의 가족법·가족정책의 변화와 포스트모던 가족 모형", 경제와 사회, (78), pp.194~222 (2008), 비판사회학회
- 남효순, "프랑스민법상 동거계약에 관한 연구", 법학, 44 (2003), 서울대학교 법학연구소
- 명순구, "프랑스법에서의 동성간 공동생활약정(PACS). in: 우리동거할까요" (2002), 도서출판코드
- 민길자, "사실혼의 현대적 전개-파트너십의 유형과 그 보호법리를 중심으로", 박사, pp.2006
- 민유숙, "성전환자에 대한 호적정정의 가부", 대법원판례해설, (60) (2006)
- 여성인권보장 및 차별해소를 위한 관련법 제정비연구-헌법상의 여성관련조항 개정방안-, "박선영", 한국여성정책연구원, ~ (2007)
- 박선영, "법여성학" (2003), 법문사
- 다양한 가족출현에 따른 쟁점과 가족법관련법의 방향정립에 관한연구, "변화순", 한국여성개발원, ~ (2003)
- 서동진, "성적 시민권과 비이성애적 주체. in: 한국의 소수자 실태와전망" (2004), 한울아카데미
- 서종희, "대리모계약에 관한 연구", 가족법연구, 23(3), pp.45~106 (2009), 한국가족법학회
- 양선숙, "동성결혼 허용의 문제", 철학과 현실, (61) (2004), 철학문화연구소
- 양현아, "성적소수자; 법사회학적 전망" (2000), 사람생각
- 오정진, "동성결합과 결혼체계의 자체생산", 성균관법학, 18(2), pp.277~294 (2006), 법학연구소
- 윤진수, "민법논고 III" (2008), 박영사
- 윤진수, "혼인의 자유. in: 한국법학 50년-과거·현재·미래(II)" (1988), 한국법학교수회
- 윤진숙, "동성애자에 대한 사회적·법적 고찰", 법학연구, 19(2), pp.277~297 (2009), 법학연구원
- 이경희, "同性婚姻(Same-Sex Marriage)의 보호에 관한 국제적 동향", 제3회 한국법률가대회 논문집: 세계화시대의 법·법률가 (2002), 한국법학교수회
- 이덕환, "미국법상 동성혼에 관한 고찰", 비교사법, 12(1) (2005), 한국비교사법학회
- 이영진, "최근 미국의 동성결혼 판결에 대하여", 시민과 변호사, (124) (2004), 서울지방변호사회
- 이은우, "동성애자의 결혼과 가정은 어떻게 보호되어야 하나?", 퀴어문화축제 무지개 2004토론회 <한국에서 동성결혼은 가능한가> (2004)
- 이화숙, "가족법 판례해설" (2009), 세창출판사
- 이회규, "同性婚姻에 관한 法的 考察- 各 國의 立法 技術을 中心으로 -", 중앙법학, 7(4), pp.299~328 (2005), 중앙법학회
- 임규철, "가족의 헌법상 의미에 관한 비판적 고찰", 헌법학연구, 9(1), pp.459~486 (2003), 한국헌법학회
- 임옥희, "젠더와 조롱과 우울의 철학-주디스 버틀러 읽기" (2006), 여이연
- 장복희, "동성간 동반자관계에 관한 국제인권법 및 비교법적 고찰. in: 성적소수자의인권" (2002), 사람생각
- 정종섭, "헌법학원론" (2007), 박영사
- 조미경, "독일민법상의 법정부부재산제. in: 현대민사법연구(최병욱 교수 정년기념)" (2002), 법문사
- 조재현, "동성애에 관한 법적 고찰", 헌법학연구, 8(3), pp.146~178 (2002), 한국헌법학회
- 조홍석, "새로운 형태의 가족: 헌법적 가능성과 한계", 공법학연구, 8(4), pp.221~242 (2007), 한국비교공법학회
- 한채윤, "외국의 동성 결혼 현황", 퀴어문화축제 무지개 2004 토론회 <한국에서 동성결혼은 가능한가> (2004)
- 한채윤, "성적소수자의 차별의 본질과 실제 그리고 해소방안. in: 성적소수자인권" (2002), 사람생각
- 다이애너 키틴스, "가족은 없다" (1997), 일신사
- Die Änehöderung der Geschlechtszugehörigkeit in Europa,insbesondere in Deutschland. in: 유럽, 특히 독일에서의 성별의변경, "Rainer Frank", 판례실무연구, ~ (2006)
- 리처드도킨스, "만들어진 신" (2007), 김영사
- 조르조 아감벤, "호모 사케르" (2007), 새물결
- 프랑수아즈 조나벵, "가족에 대하여. in: 가족의 역사 I" (2001), 이학사
- Alan T. Watters, "Heterosexual Bias in Psychological Research in Lesbianism and Male Homosexuality", J. of Homosexuality, 13, pp.1~ (1986)
- A. Sickert, "Die lebenspartnerschaftliche Familie: Das Lebenspartnerschaft sgesetz und Art", Abs. 1 GG, 6 (2005)
- "Bush renews call for same-sex marriage ban"[URL]
- Bloodsworth-Lugo, M. K., "The War on Terror’ and same-sex marriage; Narratives of containment and the shaping of U.S. Public opinion", Peace and Change: A Journal of Peace Research, 30(4) (2005)
- Bryan A. Garner, "Black's Law Dictionary 9th ed" (2009), West Group
- Carmen R. Lugo-Lugo, "475˚ From Setember 11: Citizenship, immigration, same-sex marriage, and the browning of terror", Cultural Studies, 24(2) (2010)
- Darren E. Sherkat, "Race, Religion, and Opposition Same-Sex Marriage", Social Science Quarterly, 91(1) (2010)
- David L. Weiden, "stigmatization and Discrimination", Denver University Law Review, 69(3) (1992)
- Delphy, C., "Marriage et divorce, 1'impasse a double face", Les Temps Modernes, 333(4) (1974)
- Ira Mark Ellman, "Family Law: Cases, Text, Problems, 3rd ed" (1998), Matthew Bender
- John Urquhart, "Canada to Weigh Bill for Same- Sex Spousal Benefits" (1999), Wall Street Journal
- Joseph J. Wardenski, "A Minor Exception?: The Impact of Lawrence v. Texas on LGBT Youth", The Journal of Criminal Law and Criminology, 95(4) (2005)
- Judith Stacey, "(How) Does the Sexual Orientation of Parents Matter?", American Sociological Review, 66(2) (2001)
- Karlen, "Homosexuality in History. in: Homosexuality" (1980), Basic B
- Marianne H. Pedersen, "Denmark : Homosexual Marriages and New Rules Regarding Separation and Divorce", J. Fam. L, 30, pp.289~ (1991)
- Martin, Claude, "The PaCS and Marriage and Cohabitation in France", International Journal of Law, Policy and the Family, 15(1) (2001)
- Legislative Summary—Bill C-38: The Civil Marriage Act, "Mary C. Hurley", Parliamentary Information and Research Service, ~ (2005)
- Mika Oldham, "Blackstone's Statutes on Family Law" (2008), Oxford University Press
- Nan Hunter, "Marriage, Law and Gender: A Feminist Inquiry. in: Sex Wars: Sexual Dissent and Political Culture" (1995), Routledge
- Pamela J. Lannutti, "Assessing Attitude Toward Same - Sex Marriage Scale; Scale Development and Validation", Journal of Homosexuality, 53(4) (2007)
- Pamela J. Lannutti, "For better or worse: Exploring the meaning of same -sex marriage within the lesbian, gay, bisexual and transgendered community", Journal of Social and Personal Relationships, 22 (2005)
- Pamela J. Lannutti, "The Influence of Same-Sex Marriage on The Understanding of Same-Sex Relationships", Journal of Homosexuality, 53(3) (2007)
- R. A. Rossum, "American Constitutional Law: The Bill of Right and Subsequent Amendment(7. ed.)" (2007), Thomson
- Robert M. Barid, "Homosexuality: Debating the Issues" (1995), Prometheus Books
- Robert Wintemute, "Ontario Adds Same-Sex Partners in 67 Laws", pp.1999, Lesbian
- Rosemary Auchmuty, "Same-sex Marriage Revived: Feminist Critique and Legal Strategy. in: Sexuality and Identity" (2006), Ashgate Publishing Company
- Wintemute, R., "Legal Recognition of Same-Sex Partnerships: A Study of National, European, and International Law" (2001), Hart Publishing
- Yuval Merin, "Equality For Same-Sex Couples: The Legal Recognition of Gay Partnership in Europe and the United States" (2002), Princeton University Press