민법상 자연혈족 간 금혼규정에 관한 고찰 - 헌법재판소 2022. 10. 27. 자 2018헌바115 결정의 타당성 검토를 중심으로 -

Abstract

The Constitutional Court recently judged that Article 809 (1) of the Civil Code was constitutional, while Article 815 (2) made a decision to be inconsistent with the Constitution. The current civil law regulations and foreign legislation were reviewed as a premise for reviewing the validity of the subject decision. Article 809 (1) of the Constitution recognizes the legitimacy of legislative purposes related to the family system, eugenic reasons, and the succession of traditions. It also acknowledges the appropriateness of the means employed. Opponents of the decision argue that the societal understanding of considering blood relatives within the eighth cousin as relatives is outdated. They contend that confirming actual relatives is challenging and that foreign legislation and genetic hazards remain unproven. However, it is complex to deem blood relatives within the eighth cousin as relatives and difficult to immediately consider the challenges in confirming relatives as evidence for proving the agreement's unconstitutionality. Given the absence of a logical reason to apply foreign legislation to Korea and the non-negligible risk of genetic diseases in cases of intermarriage, the agreement should be viewed as constitutional, maintaining a balance between the minimum infringement and legal interests. On the other hand, Article 815 (2) of the Civil Code can recognize the legitimacy of legislative purposes and the suitability of means, as in Article 809 (1) of the Civil Code, but it is unconstitutional, contrary to the principle of minimum infringement and the principle of balance of legal interests, considering that the invalidity of marriage can retroactively lose the family system that has already been formed, resulting in excessive harsh consequences for the party or its children. The revision of Article 815 (2) of the Civil Code is a matter of legislative policy, but in the case of in-laws within a third cousin, it is considered reasonable to define it as invalid, and other in-laws should be defined as marriages with reasons for cancellation. This is because if the scope of marriage invalidation is defined in this way, it is expected to ensure the effectiveness of Article 809 (1) of the Civil Code and minimize the scope of disadvantages to children born between marriage parties.