현행 민법상 근친혼 제도의 위헌성 ―8촌 이내 혈족 간의 혼인 금지 규정을 중심으로― (Unconstitutionality of the Prohibition Against Marriages Between Consanguineous Couples)

서지정보

· 발행기관 : 한국가족법학회
· 수록지 정보 : 가족법연구 / 34권 / 3호 / 123 ~ 172페이지
· 저자명 : 현소혜

초록

According to the Article 809 sec.(1) of the Korean Civil Act, a marriage may not be allowed between blood relatives within the eighth degree of relationship. This paper is written for demonstrating that provision infringes the freedom of marriage excessively. There is no scientific evidence that inbreeding increases eugenic risk, especially in the case of incest between couples farther than fourth degree. Banning marriage alone cannot prevent the childbirth from the consanguineous couples, either. It might contribute to reduce the sexual rivalry or sexual exploitation between family members, but not necessary to prohibit all marriages between couples within the eighth degree in order to achieve such a purpose, because most of them are not recognized as a family member any more. The conception of family has been changed dramatically since the legislation. The disadvantages to be endured by the concerned parties are also disproportionate to the state interest which is quite vague. There is no compelling interest to restrict the freedom of marriage farther than fourth degree relationship, whereas it is compulsory for institutional guarantee of marriage and family life to prohibit marriage between family members nearer than third degree. Therefore the Article 809 sec.(1) of the Korean Civil Act is unconstitutional to the extent that marriages farther than fourth degree are prohibited or unless some exceptions are provided to allow the valid marriage between them.

영어초록

According to the Article 809 sec.(1) of the Korean Civil Act, a marriage may not be allowed between blood relatives within the eighth degree of relationship. This paper is written for demonstrating that provision infringes the freedom of marriage excessively. There is no scientific evidence that inbreeding increases eugenic risk, especially in the case of incest between couples farther than fourth degree. Banning marriage alone cannot prevent the childbirth from the consanguineous couples, either. It might contribute to reduce the sexual rivalry or sexual exploitation between family members, but not necessary to prohibit all marriages between couples within the eighth degree in order to achieve such a purpose, because most of them are not recognized as a family member any more. The conception of family has been changed dramatically since the legislation. The disadvantages to be endured by the concerned parties are also disproportionate to the state interest which is quite vague. There is no compelling interest to restrict the freedom of marriage farther than fourth degree relationship, whereas it is compulsory for institutional guarantee of marriage and family life to prohibit marriage between family members nearer than third degree. Therefore the Article 809 sec.(1) of the Korean Civil Act is unconstitutional to the extent that marriages farther than fourth degree are prohibited or unless some exceptions are provided to allow the valid marriage between them.

참고자료

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