事實婚 保護에 관한 硏究 = (A)study on the protection of de facto marriage

국문 초록 (Abstract)

사실혼 보호에 관한 연구

다국어 초록 (Multilingual Abstract)

Marriage is the relationship between men and women who were not related each other on the basis of instinct of preservation of species as the institution for maintenance and continuanceof society. Therefore, the social institution has preserved marriage. It, however, does not necessarily need to be a same form, and it has been appeared in various forms according to social developments and changes.
For the marriage institution, Korea has the tradition of de facto marriage in old times and then adopted legal marriage system in 1923 during the Japanese colonial times. But this caused some legal problems with de facto marriage that was widely accepted as common things in Korea at that time.
De facto marriage means that a couple who lives together with potential willing to marry. However. It is not considered as a legitimate marriage because it does not follow legal procedure. So, de facto marriage can be seen as a by-product of legal marriage. De facto marriage has its vital flaws as follows:First, de facto marriage has potential factors to demolish marriage institutions. If the society guaranteesthe similar legal effects to de facto marriage as legal marriage, people don't need legal marriage anymore for their protection. These phenomena happen very often in developed countries such as the U.S. and many other European countries. Second, de facto marriage cannot distinguish objectively which is a legal marriage or which is an illegal marriage when a couple has a sexual intercourse. Third, de facto marriage has potential factors to collapse monogamy that is the principle law of marriage in Korea.
Although Korea adopted legal marriage in long time ago, there have been a considerable number of de facto marriages. But de facto marriage need not be protected under below condition:First, de facto marriage couple cannot have inheritance rights when their husband or wife is dead since they are illegal couples. Second, children of de facto marriage are regarded as illegitimate children. It is true that de facto marriage is exposed beyond the range of legal protection.
But, it does not mean that de facto marriage should be protected legally as legal marriage. Because, if we consider de facto marriage same as legal marriage and offer same protection, it might harm basic marriage principles such as monogamy and legal safety of civil law which adopts legal marriage. Moreover, the order of legal marriage might be destroyed since strong protection of de facto marriage would decrease the need for legal marriage and there would be no need for legal marriage.
There is one substitution: If we can not protect de facto marriage as much as legal marriage, it can be protected indirectly in certain range that it does not violate traditional customs and social order. Nowadays, many people think de facto marriage cannot protect the rights of de facto marriage couple as much as legal marriage. Decreasing in de facto marriage backs up these claims. Also, the Constitutional Court decided that provisions related with intermarriage in civil law were unconstitutional. But de facto marriage should be protected, even not as much as legal marriage, as it is one of social phenomenon due to the existence of legal marriage.
The purpose of this thesis is to solve the problems caused by de facto marriage as old convention even though Korea adopts legal marriage legally. For this, I studied and analyzed a variety of arguments that were suggested in many academic articles about de facto marriageand also analyzed the trend of it. Therefore, I can define clearly that what exactly de facto marriage means and suggest legal methods and actual protecting ways for couples in de facto marriage.

목차 (Table of Contents)

• 第 1章 序 論 = 1
• Ⅰ. 硏究의 目的 = 1
• Ⅱ. 硏究의 範圍와 方法 = 5
• 第 2章 事實婚의 槪念 = 7
• Ⅰ. 事實婚의 槪念과 法的 性質 = 7
• 1. 法律婚主義와 事實婚主義 = 7
• 2. 事實婚의 槪念 = 8
• 3. 事實婚과 類似한 槪念 = 9
• 4. 事實婚의 法的 性質 = 11
• Ⅱ. 外國의 事實婚의 槪念 = 18
• 1. 中國 = 18
• 2. 日本 = 19
• 3. 獨逸 = 20
• 4. 프랑스 = 22
• 第 3章 外國의 立法例 = 24
• Ⅰ. 中國 = 24
• 1. 事實婚에 관한 法規定 = 24
• 2. 學說 = 26
• 3. 最高人民法院의 新解釋 = 27
• 4. 結言 = 30
• Ⅱ. 日本 = 31
• 1. 事實婚 繼續中의 問題 = 32
• 2. 事實婚 解消時의 問題 = 39
• 3. 結言 = 46
• Ⅲ. 獨逸 = 47
• 1. 事實婚 繼續中의 問題 = 48
• 2. 事實婚 解消時의 問題 = 53
• 3. 結言 = 64
• Ⅳ. 프랑스 = 65
• 1. 事實婚 繼續中의 問題 = 66
• 2. 事實婚 解消時의 問題 = 73
• 3. 子의 地位 = 80
• 4. 結言 = 82
• 第 4章 事實婚의 成立要件과 效果 = 84
• Ⅰ. 事實婚의 成立要件 = 84
• 1. 序言 = 84
• 2. 主觀的 要件 = 84
• 3. 客觀的 要件 = 86
• 4. 社會的 正當性의 要件 = 87
• Ⅱ. 事實婚의 效果 = 88
• 1. 身分上의 效果 = 88
• 2. 財産上의 效果 = 91
• 3. 事實婚 夫婦間 子女의 法的 地位 = 94
• 第 5章 事實婚의 保護 = 97
• Ⅰ. 序說 = 97
• Ⅱ. 事實婚 解消時의 保護 = 99
• 1. 當事者의 合意에 의한 解消 = 100
• 2. 不當破棄에 의한 解消 = 102
• 3. 死亡에 의한 解消 = 111
• 4. 事實婚 解消時의 子女의 法的 地位 = 117
• Ⅲ. 重婚的 事實婚의 保護 = 119
• 1. 序言 = 119
• 2. 重婚的 事實婚의 槪念 = 120
• 3. 國內學說과 判例의 動向 = 120
• 4. 日本의 學說과 判例 = 123
• 5. 重婚的 事實婚의 保護基準과 限界 = 132
• 6. 結言 = 135
• Ⅳ. 特別法上의 保護 = 136
• 1. 序言 = 136
• 2. 各種의 特別法 = 137
• Ⅴ. 事實上婚姻關係存否確認請求制度 = 140
• 1. 立法趣旨 = 141
• 2. 法的性質 = 146
• 3. 婚姻申告의 法的 性質 = 147
• 4. 檢事의 當事者 適格問題 = 149
• 第 6章 結論 = 152
• 參考文獻 = 157
• Abstract = 168