국제혼인에서 혼인의사의 부존재와 준거법

이선미 대한변호사협회 2022 人權과 正義 : 大韓辯護士協會誌 Vol.- No.509

Marriage annulment actions are frequently raised for international marriages between Korean nationals and foreigners, claiming that one of the spouses does not intend to marry. Matter of choice of applicable laws for those cases has been a confusing issue, until the Supreme Court of Korea recently ruled that both Korean Civil Act and Vietnamese Law on Marriage&Family should be the applicable laws for the marriage annulment action brought by a Korean husband who wed a Vietnamese wife. The Supreme Court made that judgement based on the Article 36 (1) of Korean Private International Law Act of 2001, resolving past disagreements of the lower courts. However, although the Supreme Court stated that both the Korean Civil Act and the Vietnamese Law on Marriage&Family are applicable laws, it did not review the effect of the absence of mutual agreement of marriage according to each law, which led the Supreme Court to the mistake of choosing the Korean Civil Act as a law on litigation as for no reason. Complicated problems remain for choosing the applicable law according to the Article 36 (1) of Korean Private International Law Act of 2001, especially when the effects of the absence of mutual agreement of marriage differ by each spouse’s home country law. This paper examines how to decide the applicable law for each case according to the theories about the choice-of-law rules for international marriage. Though these theories presuppose that intention to marry is one-sided requirement of marriage, it should be regarded as two-sided requirement, considering the nature and components of marriage. It can be assumed that the Supreme Court and the lower courts also see that mutual agreement of marriage as the two-sided requirement for entering marriage. If the intention or mutual agreement to marry is viewed as a two-sided requirement, the matter to choose the applicable law in the absence of agreement would be solved much clearer than considering it as one-sided requirement. Further study is suggested whether the intention to marry can be viewed as two-sided requirement, contrary to the current theories. 우리나라 국민과 외국인 사이의 국제혼인에서 일방 당사자에게 혼인의사가 없었음을 주장하면서 혼인무효확인을 구하는 사건이 빈번하게 제기되고 있는데, 그에 관하여 준거법을 어떻게 결정하여야 하는지에 관하여는 실무상 혼란이 있어 왔다. 최근 대법원은 우리나라 국민과 베트남 국민 사이의 국제혼인에서 혼인합의의 부존재가 주장된 사건에 있어서 우리나라 민법과 베트남 혼인·가족법이 모두 준거법이 된다고 하여 준거법 결정에 관한 설시를 한 판결을 선고하였다. 대상판결 이전에 하급심 실무에서는 대체로 우리나라 민법을 준거법으로 하면서 그 근거가 되는 조문이나 이유에 관하여 통일되지 않거나 잘못된 태도를 취하여 왔는데, 대상판결은 준거법 결정의 근거가 되는 조문을 구 국제사법 제36조 제1항(현행 국제사법 제63조 제1항에 해당)으로 명시함으로써 혼란을 바로잡았다. 그러나 대상판결은 우리나라 민법과 베트남 혼인·가족법이 모두 준거법이 된다고 하면서도 각 법률에 따른 효과에 대해서는 검토하지 않고, 쟁송 방법은 구 국제사법 제36조 제1항에 따라 결정되지 않으므로 대한민국 민법에 따라 혼인무효 여부를 판단할 수 있다고 판시하였는데, 이는 베트남 혼인·가족법에 따른 혼인의사 부존재의 효과를 엄밀히 검토하지 않음에서 비롯된 부적절한 판시이다. 구 국제사법 제36조 제1항에 따라 각 당사자의 본국법을 준거법으로 하더라도, 각 당사자의 본국법이 혼인의사 부존재의 효과를 서로 다르게 규정하고 있을 때에는 복잡한 문제가 발생한다. 이에 관하여 학설의 입장에 따라 경우를 나누어 준거법 결정에 관하여 검토해 본다. 이러한 학설은 혼인의사를 일면적 성립요건으로 보는 것을 전제로 하고 있으나, 혼인의 본질에 비추어 볼 때 혼인의사는 쌍면적 성립요건으로 보아야 한다. 대상판결 이전의 하급심 실무는 혼인의사를 쌍면적 성립요건으로 보는 태도를 취하고 있었으며, 대상판결 역시 혼인의사를 쌍면적 성립요건으로 보는 인식을 기저에 깔고 있다고 보인다. 혼인의사를 쌍면적 성립요건으로 본다면 혼인의사 부존재의 경우 준거법 결정 역시 간명해질 것으로 보인다. 현재의 통설과 달리 혼인의사를 쌍면적 성립요건으로 볼 수 있는지에 관하여는 앞으로의 추가적인 연구가 필요하다.

소수민족지역 혼인관련 법치발전에 관한 분석- 자바족 사례를 중심으로 -

韩 玉 斌,강문경 한중법학회 2017 中國法硏究 Vol.30 No.-

다오푸현의 자바족 군락은 오랜 기간 동안 데릴사위, 주혼 등의 전통적인 혼인 풍속을 가지고 있다. 자바족 남성의 주혼과 데릴사위 풍습은 높은 비율을 차지하고 있는데, 이중 29.4%의 남성이 주혼을 선택하고 41.2%의 남성이 데릴사위를 선택하며, 오직 11.8%의 남성만 일반적 형태의 결혼을 한다. 물론 장자의 경우 결혼을 통해 가계를 잇는 현상은 분명하게 나타나고 있으며, 조사대상중의 30%의 장자는 결혼을 하고 있다. 둘째 아들의 경우 결혼하는 비율은 8.3%에 그치고 있으며, 삼남의 경우는 없고, 막내아들의 경우는 6.25%가 결혼을 한다. 그러나 만약 독자의 경우 결혼의 비율은 50%로 상승한다. 자바족 여성이 결혼하여 출가하는 경우와 주혼을 받아들이는 경우, 데릴사위를 얻는 혼인 형태는 3등분으로 나누어져 있으며, 이에 대한 비율은 35.3%, 35.3%, 29.4%이다. 만약 장녀의 경우, 결혼 후 출가는 20%, 주혼을 받아들이는 경우는 30%, 데릴사위를 얻는 경우는 45%로 상승한다. 막내딸의 경우 데릴사위를 얻는 경우 혹은 주혼을 받아들이는 경우의 비율은 54.6%이며, 이중 다른 딸들의 대부분은 결혼을 하여 출가를 하였다. 자바족의 큰아들 또는 외아들의 대부분은 결혼을 선택한다. 이는 그들이 마음속으로는 부계혈통을 중시하고 있음을 보여준다고 할 수 있다. 또한 만약 아들이 혈통을 계승할 능력이 없는 겨우, 사위를 맞아들여 이러한 문제를 해결한다. 주혼을 하고 집에 있는 아들은 집안일을 하며 숙부로서의 권리를 향유한다. 이것은 자바족의 혼인 형태 선택과 가정은 인구 번성과 관련이 깊다고 할 수 있으며, 이는 후대의 혈통승계가 부계인지 모계인지에 대해 그다지 문제 삼지 않는 다는 의미이기도 하다. 데릴사위와 주혼의 높은 비율은 사회 환경 안에서 자바족의 전통 가족 구성에 있어 연합가정 과 주간가정간의 한 형태라고 할 수 있다. 몇 대가 함께 사는 자바민족이 비록 한세대에서 일부일처가 할지라도 같은 세대 내에 2가지 이상의 양육단위가 존재하고 있으며, 따라서 전통적인 자바족의 가정 구성 형태는 보편적으로 비교적 광범위하며 복잡한 양상을 띠고 있다. 그러나 최근 자바족의 가정 구성에 있어 커다란 변화가 발생하고 있다. 핵가족화된 가정의 수가 점차 증가하는 형태를 띠고 있는 것이다. 현대 혼인법의 가치와 나아갈 방향은 복리주의이며, 이는 남녀평등의 부부재산공유제의 실현에 있다. 또한 부부 약정재산제도는 이에 대한 자유를 명확히 드러내고 있으며, 배우자 부양권에서는 약자 보호를 중시하고, 경제 조력권, 자녀에 대한 부양권, 부모에 대한 봉양권, 가까운 친족 간의 계승권리 등 현대법제의 정신을 혼인 가정제도 체계에 반영하기 시작하였다. 소수민족의 혼인법규정에 대한 자율적인 한도 내에서 민족의 전통문화 설정권리의무관계를 설정할 수 있으며, 이는 국가가 소수민족의 문화 다원화성을 존중하고 있음을 명확히 보여주고 있다. 또한 혼인법 중에서는 가장 낮은 정도의 강제성을 요구하고 있고, 이는 소수민족혼인과 현대사회의 가치추구라는 두 가지 부분을 멀어지게 하기도 한다. 그러나 사회문화발전 과정 중의 한 부분이라고 볼 때, 자바족은 우리의 전통향토사회와 국가혼인가정입법간의 격차에서 스스로 적응하는 전형적인 예라고 볼 수 있다. In Yazhuo District Daofu County, the Tibetan have been holding particular marriage custom, such as matrilocal residence and walking marriage. The male predominant choices are male-leaving marriages, among all of them, there are 29.4% who choose male-leaving marriage and staying at home, there are 41.2% who choose marrying into and living with their brides’ families, there are only 11.8% who marry at home. Certainly, it is obvious that the eldest sons usually marry at home and carry on the family line. Their marriage percentage is 30%, by comparison, the second song’s is 8.3% and the youngest 6.25%. If he is the only son, the probability about he marrying at home is more than 50%. The female choices generally balance among getting married, walking marriage and looking for visit-son-in-law, the percentages are respectively 35.3%、35.3% and 29.4%. If she is eldest daughter, the probability about she marrying and staying at husband’s home is only 20%, the walking marriage’s is 30%, and the matrilocal residence’s is more than 45%. Either matrilocal residence or walking marriage, the percentage of the youngest daughter staying is 54.6%. In addition to them, most of the other daughters often marry and live at husband’s home. As a result, Zaba Tibetan emphasize the paternal line in the depth of their heart, if their sons are incapable or indisposed, the daughters will inherit the ancestral descent. When decide their marital model, Zaba Tibetan pay more attention to family population, whether the blood lineage comes from father or mother, they pay few attention to it. Zaba Tibetan families are huge and complex, there are more than two fertility units in one generation. In recent years, Zaba Tibetan family structure has been changing obviously, the core family is growing in number distinctly. The value orientation of modern marriage law is welfarism, the community property embodies the equality of men and women, the system of contractual spousal property manifests the freedom, which focus on protecting the weak are the support right, the help right, the custody and the succession, all of them construct the modern marriage law. The minority ethnic groups have the right to set up their jural relations within the limits, which manifests the state respect cultural diversity. The marriage law unify the minimum mandatory stipulates, which avoids the minority’s marriage far from modern society. As a developing nodal point, Zaba Tibetan family structure modification is a typical sample about self-adaptation between state civil legislation and traditional custom.

출산경력의 불고지와 혼인 취소 사유 ―대법원 2017. 5. 16. 선고 2017므238 판결―

김유진 한국가족법학회 2021 가족법연구 Vol.35 No.2

This article, the comments on Korea Supreme Court Decision on May 16th 2017, Case No. 2017Meu238, treats the issue on ‘whether concealment of past childbirth history involves fraud sufficient to cancellation of marriage’. In the case, the wife, Vietnamese marriage-immigrant woman, had experienced childbirth in former forced marriage by means of kidnap, rape, and imprisonment at the age of 13, which is not known to her husband. When the marriage was broken up due to the repeated sexual abuse of the father-in-law and the woman filed for divorce, her husband found the past childbirth history of the wife in criminal conviction of her father-in-law, and filed a counteraction for cancellation of marriage arguing that her concealment of past childbirth history constitutes fraud and cancellation of marriage shall be granted on Korean Civil Act article 816(3). Korean Supreme Court had ruled on its decision on February 18th 2016, case No. 2015Meu654, 661 that the concealment of childbirth history, which has been caused by rape on her minority, cannot be regarded as fraud and the woman did not have a duty to inform the history to her husband when marriage. However, in the case, Korean High Court (the original court) which has been remanded the case, granted cancellation of marriage, on the reason that newly investigated facts show that her past childbirth has been caused not by “rape on her minority”, but “her marriage”. This decision was finally affirmed by Korea Supreme Court. This article argues that concealment of past childbirth history itself, whether it was caused by rape on minority or not, shall not be a ground of marriage cancellation, as the past childbirth history cannot be ‘the essential elements of marriage’. This article further argues that the forced marriage by kidnap or rape on minority should not be regarded as “marriage”. Thus this article reaches the conclusion that Korea Supreme Court’s final decision in the case should be criticized and reconsidered.

조선후기 동성촌락 구성원의 통혼 양상

권내현(Kwon Nae-Hyun) 한국사연구회 2006 한국사연구 Vol.132 No.-

The nobility of Joseon period intended to maintain their social position through marriage with people whose surname were prominent. They also concentrated on establishing marriage relations with specified surnames in accord with their own families through accumulated experiences between generations. Concentrated on 16 surnames were more than half the 117 surnames of Andong Kwons' female spouses, the subjects of analysis. This phenomenon became generalized only after the 17th century when the base for the single-lineage village was beginning to be established. Because a circle to offer marriage could not be concentrated unless a surname group who asserts a certain figure to be its famous ancestor in a specified area resided and the trend that other family prefers such member as a spouse extended. Though there was a time gap, close corelation existed between the development of the single-lineage village and concentration of a circle to offer marriage. Seeing from the standpoint of a marriage area, the nobility wanted to obtain their spouses as from far as possible. But, due to the influence of famous the single-lineage village formed in their neighborhood, they obtained most of their spouses from nearby area(Gun, Hyeon) or, even at the farthest, within province(Do). In case of the Andong Kw?n families, marriage within Myeon was 7.4%, marriage within Gun was 26.7% and the remains were expected to be marriage within Do including nearby Gun and Hyeon. The ratio similar to such ratio showed in the late Joseon period as well as in a recent famous the single-lineage village. This is another case where the tradition of the late Joseon period was handed down to today. In the meantime, it was revealed that the ratio of remarried couples who came from the same Gun and Hyeon was very high compared with that of remarried couples whose spouses came from other area. In case of remarriage, a circle to offer marriage was more limited to the inside of an area, which was related to the discrepancy in age between husbands and wives and the social standing of their families. That is, the average gap in age of husbands and wives who got married for the first time was 3.4 years old, but in case of most of remarried couples, the husbands were older than wives and the gap in age was 12.3 years old. Also, from the viewpoint of economical power based on the scope of retaining servants or social standing judged through production of central government officials, in most cases, the families of the subjects of remarriage were inferior in strength to those of the subjects of first marriage. Unlike remarriage, a concubine was not acknowledged as a formal wife and thus her descendant was treated discriminatively. Illegitimate lines of the Andong Kwon lineage in this area accounted for 28% of the total members, showing high ratio. The illegitimate lines whose social standing were lower than legitimate lines were restricted in marriage and even the ratio of remarriage were only half of that of legitimate lines. But, illegitimate lines formed the single-lineage village on the basis of the same identity, kinship relation, and certain economical power, maintaining their own circle to offer marriage. Instead a village whose solidarity based on kinship relation and economical power is weak and where legitimate and illegitimate lines were mixed, the scope of selecting a spouse were more restricted.

Characteristics of Vietnamese Marriage Migration and the Legal Provisions of Korean Society

Lee Jung Hyang(이정향) 대구가톨릭대학교 다문화연구소 2013 다문화와 인간 Vol.1 No.2

Marriage-migrant women are not temporary sojourners, so their impact on local communities is great. As such, they are important subjects of local study. In the Daegu-Gyeongbuk region, Vietnamese marriage-migrant women are in the highest proportion. According to a survey of Vietnamese marriage migrant women in the Daegu-Gyeongbook region, characteristics of Vietnamese marriage migrants are as follows: ① Strikingly high proportion of marriages are brokered by marriage agencies. ② They have resided in Korea for a short period of time. ③ Marriage migration is at the stage of settlement or early stage of adaptation. So, people are struggling to adapt to Korean society. ④ They have weak social networking in Korea. ⑤ There is a high proportion of the Vietnam marriage migration in the Gyeongsang (our local) area. To legally protect marriage-migrant women, Legislation on the Management of Marriage Brokerage and The Framework Act on the Treatment of Foreigners Residing in Korea were established in 2007, Legislation of Support for Multi-cultural Families Act in 2008. Nationality Act was revised to protect marriage-migrant women as family members, and as members of the community throughout the whole marriage process. The act permits the acquisition of nationality by a simple naturalization process and conditional dual citizenship. In addition, alternative policies are required to solve problems Vietnamese marriage-migrant women face in their daily lives. Given the low employment rate caused by low educational attainment and poor language skills, they urgently need political support like an institutional strategy for intensive and effective Korean language education before migration to Korea.

부산지역 대학생의 결혼 및 가족에 대한 인식조사

강성훈(Seong-Hoon KAHNG),주성희(Sung-Hee JU) 한국수산해양교육학회 2018 水産海洋敎育硏究 Vol.30 No.1

This study is the starting point of the debate to overcome the problems of the non - marriage and low fertility in the young people. It contains the results of the marriage and family awareness survey conducted on 409 college students in Busan. First, 65.6% of the respondents agreed on the necessity of marriage. Male students responded 29.7% more to the necessity of marriage than female. Second, regardless of gender or age, married conditions were considered to be the most appropriate after employment, and there were considerable cases where the marriage was delayed to after economic stabilization, such as providing housing funds. Third, regarding the meaning of marriage, both men and women have strongly agreed to living with a loved one, and have a strong agreement about emotionally stable life and legal sex life. Next, the perception of marriage culture is divided into negative response and positive response. In this case, the female students are more likely to share the household chores than the male students. And should not work after childbirth. The lower the age of female students, the more negative the tendency is. Male students were somewhat higher than female students in their response to the question marry quickly for marriage and birth. In addition, the respondents response to early marriage for childbirth and postponing marriage until employment showed a tendency that the higher the ages, the higher the positive response rate. Finally, regarding marriage attitudes, male students were more active than female students in sexual intercourse and living together before marriage.

미혼남녀의 정서적·당위적·기능적 결혼의향에 영향을 미치는 변인 연구

박혜민,전귀연 한국가족관계학회 2018 한국가족관계학회지 Vol.22 No.4

Objectives: The purpose of this study was to investigate individual awareness variables influencing emotional, normative, and functional marriage intentions of unmarried men and women. Independent variables were values of offspring, perceptions to unmarried life, attitudes toward multiple role planning, perceptions and availabilities of marriage-related policies, views on the marriageable age, psychological burdens of pressure to marriage by significant people, and views on parents’ support for marriage fund. Method: 553 unmarried men and women in Daegu, Korea were surveyed, and the data were analyzed using descriptive statistics, factor analysis, multivariate analysis of variance(MANOVA), multiple regression analysis, and hierarchical regression analysis with SPSS 22.0. Results: First, this study was more exploratory and in-depth approach to marriage intentions than precedent studies. The sub factors of marriage intentions were emotional, normative, and functional marriage ones. Second, emotional marriage intention showed significant differences depending on gender, dating, views on the marriageable age, and degree of acceptance of parents’ support for marriage fund. Among the individual awareness variables, values of offspring, perceptions to unmarried life, attitudes toward multiple role planning, and psychological burdens of pressure to marriage personally or by friends influenced emotional marriage intention. Third, normative marriage intention showed significant differences depending on gender, religion, occupational status, employment condition, dating, views on the marriageable age, and degree of acceptance of parents’ support for marriage fund. Among the individual awareness variables, values of offspring, perception to unmarried life, attitudes toward multiple role planning, view on the marriageable age, availabilities of marriage-related information offering policies, and psychological burdens of pressure to marriage by mother influenced normative marriage intention. Fourth, functional marriage intention showed significant differences depending on gender, job, parents’ support for marriage fund, views on the marriageable age, and degree of acceptance of parents’ support for marriage fund. Among the individual awareness variables, functional marriage intention was influenced by values of offspring, perception about unmarried life, attitudes toward multiple role planning, and degree of acceptance of parents’ support for marriage fund. Finally, the hierarchical regression analysis showed that individual awareness variables influenced on marriage intentions. Especially, values of offspring, perceptions to unmarried, and attitudes toward multiple role planning influenced on emotional, normative, and functional marriage intentions in common. Conclusions: The findings from these analyses suggest that the selective process based on the individual awareness has become very significant to having marriage intentions. Therefore, this study will contribute as the basic data on national marriage-related policies. Furthermore, this study will be able to use to think about the marriage intention as a task to be preceded by the national policy in order to prepare for Korea 's low fertility and aging phenomenon.

현대사회의 사실혼

박수영 강원대학교 비교법학연구소 2024 江原法學 Vol.75 No.-

우리나라의 혼인은 혼인의 합의와 혼인신고로 성립하므로, 혼인신고를 하지 않으면 민법의 보호를 받는 법률혼으로 될 수 없다. 그러나 실질적으로 남녀가 부부처럼 공동생활을 하지만 혼인신고하지 않은 관계를 사실혼이라고 하여 법률혼에 준하여 보호하고, 다만 혼인신고를 전제로 하여 인정되는 권리의무관계만 인정하지 않는다. 나아가 중혼적 사실혼의 개념까지 인정하고 있으며, 최근에는 동성의 결합관계도 사실혼으로 보호해야 한다는 요청이 지속적으로 표출되고 있다. 그러나 현대사회에서 혼인신고를 할 수 있음에도 자유의사로 혼인신고 하지 않는 상태까지 사실혼이라 인정하는 것은 혼인제도의 본질에 관한 진지한 검토를 필요로 한다. 무분별한 사실혼의 인정은 법률혼 제도를 형해화한다. 그런데 현재 법률상태를 고려하면, 사실혼개념을 계속하여 반드시 유지할 필요가 있는지는 의문이다. 따라서 이 연구에서는 사실혼 개념의 인정 필요성을 검토하기 위하여 사실혼에 대한 일반론과 함께 사실혼 제도를 통한 긍정적 효과와 부정적 효과를 살피고, 현대사회에서 사실혼개념의 의의와 역할에 관하여 근본적으로 고민하고자 한다. Korean marriage requires marriage agreement and marriage report, so if marriage is not reported, it cannot be a legal marriage protected by civil law. However if a man and a woman live together as a couple without marriage report, they are defined as commonlaw marriage and protected in the same way as legal marriage, except various legal rights and protections that are recognized among married couples. Furthermore, the bigamous commonlaw marriage is also accepted, and recently, there have been continuous calls for same-sex unions to be protected as commonlaw marriage. However, in modern society, it is necessary to seriously review the nature of the marriage system in order to recognize a relationship that has not been reported by free will as a commonlaw marriage. Indiscriminate permission of commonlaw marriage violates the legal marriage system. However, considering the current legal status, it is questionable whether it is necessary to continue the commonlaw marriage system. Therefore, in order to examine the necessity of commonlaw marriage system, this study examines the general theory of commonlaw marriage and the positive and negative effects of the commonlaw marriage system, this study will try to find the significance and role of the commonlaw marriage System fundamentally.

미국헌법과 혼인의 자유

허순철(Huh, Soon Chul) 한국토지공법학회 2009 土地公法硏究 Vol.43 No.3

It has been said that marriage is not only a foundation to form a family, but also the most fundamental relation to our very existence. However, what is marriage? A law dictionary defines marriage as a legal union of a man and woman as husband and wife. But, in Goodridge v. Dep't of Pub. Health, the court said that it is the exclusive and permanent commitment of the marriage partners to one another as a union of any two persons regardless of their sexes. In the U.S., the institution of marriage is a creature of state law. Two forms of marriage have been authorized: one is civil marriage that is solemnized by a person authorized to perform marriages, the other is a common-law marriage, which is a marriage without formal solemnization. The U.S. Supreme Court cases that purport to recognize a fundamental right to marry do not provide any core definition of the right. Only when the state refuses to let certain people into the state-defined institution, or when the state violates the anti-discrimination principle, does the Court apply constitutional protections. The right to marry is principally a product of three cases. The initial decision is Loving v. Virginia, where the Court struck down a ban on interracial marriage. It stressed that “freedom of choice to marry” may “not be restricted by invidious racial discrimination.” In Zablocki v. Redhail, the Court invoked the Equal Protection Clause to strike down a Wisconsin law forbidding people under child support obligations to remarry unless they obtained a judicial determination. The Court announced that “the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.” In Turner v. Salfi, the Court added that marriages are often recognized as having spiritual significance--and that “marital status often is a prerequisite for” a number of material benefits, including property rights. In the U.S. some scholars say that they are skeptical of the official institution of marriage and it should be abolished. Meanwhile, the Court has declined to intervene with the realm of domestic relations and also emphasized that it is appropriate for the federal courts to leave domestic relations to the state court. Even if the words of the Article 36 (1) of the Korean Constitution--“both sexes”--should be understood not to permit same-sex marriage as some scholars argue, the legal question whether it is legislatively desirable or not is totally different one. Furthermore, it also should be reviewed whether the institutions such as civil union and domestic relations may be adopted in Korea.

婚姻法解释(三)争议下的当代中国人婚姻观

???(Jang, Ting-Ting) 중국문화연구학회 2018 중국문화연구 Vol.0 No.42

The status quo of marriage tends to reflect the culture and value of a society. Marriage Law, as the restriction and guarantee of the marriage often reflects the mainstream culture and value of the society in which the marriage is constituted. Based on the analysis of the dispute clause of the Marriage Law of China, established and put into effect in 2011, the article analyzes contentious clauses of Judicial Interpretation of Marriage Law(3) in combination with its practice. The article mainly concentrates on the problem of the division of property and reproductive rights. The Judicial Interpretation of Marriage Law (3) follows the principle of property belonging to the Property Law and emphasizes equality between men and women. Women have been given greater options and autonomy in terms of reproductive rights. This paper looks to analyze the concepts behind the dispute, with high emphasis, in regards concerning the specific aspects of social culture and looks to explore the attitude of Chinese people to recent legal modifications therein. Furthermore, it looks to concrete on the reflection and influence of the legal modification on the Chinese people’s concept overall concept of marriage in both a modern as well as historical sense. The Chinese people believe that equal and independent relationship between men and women is the premise of establishing a working marriage relationship, which can also manifest the essence of the marital relationship. The marriage House property is no longer a material guarantee for taking risks in the marriage. Marriage tends to be free, and people’s attitude towards marriage of tends to be faint. The old conception of fertility under the influence of Confucianism has greatly changed over time. In order to maintain the independent economic and social status, the decision of the Chinese female with regards to reproductive choice has become more greatly strengthened than perhaps any other time in the countries long history. Child rearing and the establishment of the family has long been an accelerator for promoting(harmonious) the development of marital relationships, which it can be argued has propelled society forward and yet is not essential for all relationships. In this regard, the interpretation of the Judicial Interpretation of Marriage Law(3) shows that the country level encourages women to be on an equal footing with their male counterparts when entering into the union of marriage. The specific provisions of China Marriage Law reflect growing respect for and protection of women’s rights and interests.