民法 제809조의 改正에 관하여

Abstract

There are some legal systems about prohibition of marriage between close blood relatives or close relatives of affinity in every country's civil law. Under Korean Civil Code, we have the legal system about prohibition of marriage between blood relatives or affinity relatives. Section 809 of Korean Civil Code provides of prohibition of marriage between parties whose surname and its origin are common or who have affinity relatives. Section 809, paragraph (1) provides that "marriage may not be allowed between blood relatives, if both surname and its origin are common to the parties"and paragraph (2) says that "marriage may not be allowed to the parties if either of them is or was the spouse of a male line blood relative, husband's blood relative or any other relative by affinity within the eighth degree of relationship. Korean Civil Code Section 815 provides of 'Nullity of Marriage', and it says that "marriage is null and void if it falls under any of the following subparagraphs ; 2. Where there exists or existed between the parties the relationship of lineal blood relative, collateral blood relative within the eighth degree of relationship and spouse to one of such relatives; and 3. Where there exists or existed between the parties the relationship of lineal relative by affinity and relative by affinity of husband's blood relative within the eighth degree of relationship. Then the legal scope of the prohibition of marriage is so wide, so it needs to make it smaller, now, the governmental amendment(of the year of 2000) of Section 809 of Korean Civil Code is submitted to Korean National Assembly, waiting for being passed. And also, the decision of the court of fundamental law held that the paragraph (1) of Section 809 was in 'discord with Korean Fundamental Law', so that paragraph (1) has been not effective since Jan. 1. in 1999. And there are also several problems in the legal interpretation about Section 809 as the current provision, and in the amendment of Section 809. I think that the concept of 'the same surname and same origin of the ancestor' should be needed in the amendment because it is useful to use that concept, and the scope of prohibition of marriage between close blood relatives or close affinity relatives must be smaller.