동성 동반자의 민사법적 지위에 관한 소고 - 대법원 2024. 7. 18. 선고 2023두36800 전원합의체 판결과 관련하여 - = A Study on the Civil Law Status of Same-sex Partners - In Relation to Supreme Court Decision 2023Du36800(July 18, 2024) -

다국어 초록 (Multilingual Abstract)

Through the subject ruling, the Supreme Court ruled that the National Health Insurance Service's denial of dependent status to a partner in a same-sex domestic partnership constituted discrimination without a rational basis. This decision has the potential to bring about significant change in the legal recognition of same-sex partnerships. The subject ruling asserted that recognizing dependent status for same-sex partnership is no different from recognizing it for a spouse in a de facto marriage.
However, under the current legal framework, the term 'spouse' presupposes an heterosexual marital relationship, and a same-sex partnership inherently possesses a fundamental difference in status compared to a de facto marriage which is equivalent to a legal marriage. Therefore, the conclusion of the subject ruling—which granted dependent status under the National Health Insurance Act to a same-sex partnership by treating it as being the same as a person in a de facto marriage—is considered not justifiable.
Nevertheless, arguing that the subject ruling is unjustifiable does not mean that there is no necessity to protect the cohabitation arrangements formed through real, existing same-sex unions. Although opposition to the legalization of same-sex marriage persists, the shifting tide of public opinion—evidenced by a narrowing divide and the fact that a majority now recognizes same-sex relationships as a valid form of love—raises the critical question of whether it is necessary to legally establish and recognize rights for same-sex partners.
To address the limitations of existing legislation, which fails to fully encompass the diverse family structures of the modern era, our legal framework requires modification. Specifically, potential measures include amending the Constitution or the Civil Act to incorporate new forms of personal unions, or enacting a special act to regulate them separately. Regardless of the legislative framework adopted, it is now imperative to deliberate on measures that afford substantive protection to same-sex partners; the significance of the subject judgment lies in its role as a catalyst for such discourse.