민법상 혼인에 있어서 근친혼에 관한 소고 -민법 제815조 제2호를 중심으로-

Abstract

Marriage is a social construct, and as time passes, it evolves to encompass a broad range of meanings, becoming a complex cultural phenomenon. Therefore, the forms of marriage vary widely depending on the laws, customs, religions, and other social norms of different countries, as well as according to the era, place, nation, and ethnicity. In our Civil Act, legal marriage is adopted in connection with the establishment of marriage, and the reasons for the prohibition of marriage are listed, and if this is the case, it can be invalidated or canceled. A representative reason for the prohibition of marriage under the Civil Act is "Prohibition of Consanguineous Marriage" stipulated in Article 809 of the Civil Act, which cannot be married among blood relatives within 8th degree of relationship (Paragraph 1), which constitutes a reason for invalidation of marriage (Article 815 No. 2) of the Civil Act). However, in this regard, the Constitutional Court of Korea recently decided to amend the above provisions by December 31, 2024, as Article 815 No. 2 of the Civil Act, which uniformly invalidates the marriage between blood relatives within 8th degree of relationship, violates the constitution by violating the freedom of marriage. Therefore, in this paper, I will analyze the contents of the decision of the Constitutional Court of Korea and review the representative reason for the prohibition of Consanguineous Marriage. Specifically, I intend to propose an amendment to the Civil Act, which separates the scope of relatives within the 8th degree of consanguinity as specified in Article 809, Paragraph 1 of the Civil Act: rendering marriages between relatives within the 4th degree of consanguinity void, and those between relatives within the 8th degree of consanguinity voidable, as outlined in Article 815.