동성 동반자 관계에 사실혼 법리 적용 가능성 = The Applicability of De Facto Marriage Doctrine to Same-Sex Partnerships

다국어 초록 (Multilingual Abstract)

Korean family law is at a critical juncture. Courts have thus far refused to recognize same-sex unions either as marriage or under the doctrine of de facto partnership, while legislative efforts have remained inconclusive. In this context, the Supreme Court decision in Case No. 2023Du36800 provides an important doctrinal basis for reconsidering the legal protection of same-sex relationships.
The Court held that the purpose of dependent status under the National Health Insurance Act is to protect individuals who are economically dependent on an insured employee. It further recognized that de facto spouses, as a substantial living community, fall within the scope of protection. Extending this reasoning, the Court found that same-sex partners who form a comparable economic and living community—particularly where one partner is financially dependent—are functionally equivalent to de facto spouses. Differential treatment of such partners therefore constitutes a violation of the principle of equality.
Although the decision has been criticized for exceeding the limits of judicial review, it nevertheless provides a foundation for extending civil law protections traditionally granted to de facto spouses. Under Korean law, rights such as support and property division are based on a shared economic life and mutual dependence within a stable living community. Denying these rights to same-sex partners in similar circumstances raises serious concerns under the equality principle, especially given that civil law rights are generally expected to apply universally.
A key doctrinal challenge lies in the requirement of intent to marry for recognizing de facto partnerships. This may be addressed by reinterpreting the subjective element as an intention to maintain a long-term shared life, or by focusing more on objective factors such as the existence of a stable economic and living community.
Comparatively, Israel offers a notable example. Despite its conservative, religion-based legal system, it has gradually expanded legal recognition of same-sex partnerships through cohabitation law. However, the de facto partnership framework remains limited, particularly with respect to status-based rights such as adoption and parental authority. Addressing these limitations ultimately requires legislative reform.
Accordingly, this study argues for a gradual approach: first, extending property and family law protections through the application of de facto partnership doctrines, and ultimately moving toward full legal recognition of same-sex marriage accompanied by the recognition of parental rights.