1958년 민법 제809조의 歷程 － 소수자 인권에 관한 법정책적 담론을 겸하여 －

Abstract

Article 809 of the 1958 Korean Civil Code was a subject of considerable controversy ever since its enactment. The question as to the scope of banning marriage was hotly debated throughout the whole process of enactment of the Korean Civil Code: one position maintained that marriage between couples with the same surname should be prohibited, whereas the other argued that only blood relatives should be subject to such a ban. While the Summary on the Compilation of the Civil Code opted for a ban against marriage between blood relatives, the draft bill initiated by the Civil Code Compilation Commission and the government stipulated a ban on same-surname marriage. The government-initiated bill was amended by the Legislation and Judiciary Committee which undertook its preliminary review and as a result, the government bill with the blood-relative-marriage ban was submitted to the plenary session. After a fierce debate, the government bill was passed by the National Assembly, thereby resulting in Article 809 of the 1958 Korean Civil Code. The parliamentary records shows that the part on Article 809 is ten times greater than that on the whole law of obligations.

An examination of the remarks made by lawmakers during the deliberation reveals that the ban on same-surname-same-origin marriage is more a 'reflection of national pride' rather than a mere marriage institution. The ban on same-surname-same-origin marriage seems to have been a foundation for the argument that despite the then low living standards, Korea nevertheless is the purest and most moral nation in the world. Lawmakers criticized the Legislation and Judiciary Committee's amended bill in order to gain political points, despite the fact that there arguments lacked any real substance. To some extent, all they seemed to say was that same-surname-same-origin marriage "just isn't right." In 1997 the Constitutional Court ruled against the ban on same-surname-same-origin marriage, as a result of which Article 809 of the current Civil Code came to stipulate a ban on blood-relative marriage. Ultimately Korea has returned to the position taken by the Summary on the Compilation of the Civil Code.

Time does not simply change 'something which just isn't right' into 'something that is'. Claiming that "the ban on same-surname-same-origin marriage just isn't right" seems to have been not right. Norms cannot but change with the passage of time. The argument that merely banning blood-relative marriage without the ban on same-surname-same-origin marriage would only encourage same-surname-same-origin marriage proved to be groundless. The generation of inhumane consequences (the sufferings of lives of couples with the same surname and same origin; discrimination against those born out of wedlock) which was the result of the ban on same-surname-same-origin marriage should never have occurred.

There still is a need to be wary of any infringement on human rights of minorities that may exist today. It was inevitable that such people became minorities. Providing protection for such people will not encourage the majority to become minorities.