민법상 근친간 금혼 규정에 대한 헌법적 고찰 - 최근 헌법재판소 결정(헌재 2022. 10. 27. 2018헌바115)에 대한 비판적 검토 -

Abstract

On October 27, 2022, the Constitutional Court made a constitutional decision on the Prohibition of marriage within 8th degree blood relative. But, the provision that regards incestuous marriages as uniformly invalid was decided as unconstitutional. This latest decision marks the first major change. However, since the prohibition of marriage between close relatives within the 8th degree of relationship is still valid, the scope is defined according to the scope of kinship under the civil law without reflecting social and temporal changes or international norms. Of course, I think it is fortunate that the provision that regards incestuous marriages that violate the Civil Act as uniformly invalid is decided as unconstitutional. Perhaps the recent decision of the Constitutional Court is in line with the international trend and is the beginning of a change that can faithfully implement the basic rights of the people. Therefore, this study analyzes the recent Constitutional Court decision to examine the legal and institutional meaning of the prohibition of incest marriage and marriage, and grasps implications through comparison and consideration with foreign legislative examples. And the decision of the Constitutional Court is reviewed in terms of the possibility of violating personality rights and the right to pursue happiness as universal human rights, and the possibility of violating the free marriage partner choice. In addition, including a review of the civil law amendment bill currently pending in the National Assembly, opinions are presented on the direction in which the provisions of the civil law for which the Constitutional Court has issued an order to urge legislation can be reasonably amended.