KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Background and Purpose of Research

○ In Korea, the perception of the types of family has recently changed from families that are mainly focused on "kinship" to traditional families, one-person households, single-parent families, multi-cultural families, cohabiting couple families, same-sex couple families, etc.

○ Recently, various discussions on how to accept various types of families in the society and discussions on government policies are underway.

○ With regard to the amendment to the Framework Act on Healthy Families concerning various family concepts, the Government deems that the term "healthy family" describes the policy objectives to be pursued and it is required to maintain the current legal definition, because the terms "home" and "family" are used in both real life and law.

○ In terms of the Government's legal system for acceptance of and support for various family types, it is needed to examine how to improve the legal system that ensures the improvement of the consistency of legal acceptance and protection policies and the effective implementation thereof, while enabling sustainable operation.

 

Ⅱ. Contents

○ Current status and prospects of family changes in Korea 

- Currently, discussions have been made on the necessity of the provision of "scope of family" under the Civil Act regarding the acceptance of and support for various family types and on whether to accept it through the amendment to the Constitution or any constitutional modification.

- In Korea, the size and formation of family has been reduced, and national values toward families has been changed (① the weakening perception of marriage and childbirth, ② the increase of positive perception of childbirth by cohabiting or unmarried couples, and ③ the increase of positive perception of same-sex couple marriage).

- The increasing diversity of family types causes multiple issues, such as support for parents and care of children, and care for single-person households.

- It is required to examine a gap between the requirements for family formation in the legal system and the concepts of family focused on family functions, in connection with the scope of family following the increase in family diversity.

○ Cases of overseas legislation

- In cases of overseas legislation, the necessity for phased discussions arises in considering the new types of human combination to form a family.

- It is required to examine: ① whether legal protection is needed for human combination between men or between women in addition to the traditional marriage system, ② where there exists the necessity for legal protection for same-sex marriage, whether it is to be absorbed in the existing traditional marriage system or whether there shall be applicable provisions through the amendment to the Civil Act (separate provisions in Part IV (Relatives) or Part V (Inheritance)) or the enactment of a Special Act, ③  where there are separate provisions in the Civil Act or applicable provisions through the enactment of a Special Act regarding same-sex marriage, whether the existing marital relationship is applied to such relationship or it is defined as a loose relationship, and ④ whether it is necessary to recognize a loose relationship regarding opposite-sex couples other than the existing marital relationship, and if such necessity is recognized, whether there shall be separate provisions in the Civil Act or  applicable provisions through the enactment of a Special Act.

○ Measures to improve the legal system for various types of families

- As a measure for improvement in the Constitution, there is a necessity for the policy directions and statutes and regulations regarding same-sex marriage that consider how to grant benefits for or rights to social welfare, medical care, etc. by conferring the status of quasi-family to sexual minorities and members of other family types by means of "solidarity", etc., in addition to the acceptance of same-sex marriage through the constitutional amendment or constitutional interpretation.

- It may consider the repeal of the provisions of Article 779 of the Civil Act (scope of family members), but the provisions regarding the scope of relatives under Article 767 of the Civil Act need to be maintained.

- With respect to the acceptance of cohabitation relationship, etc. in the Civil Act, same-sex marriage requires a change in the position of the Supreme Court and the creation of national consensus.

- With respect to the Framework Act on Healthy Families and the Multicultural Families Support Act, it is necessary to clarify the establishment of scope to accept various types of families.

- With respect to the legal acceptance and protection of various types of families, the legislative improvement is required in the individual sector regarding: ① legal protection in medical care, such as informed consent, medical certificates, and prescriptions, ② acceptance within the scope of a relative related to funeral, ③ protection of child support expenses after divorce, ④ support for care, etc. for the family members of employees, ⑤ acceptance as a person subject to health insurance coverage, ⑥ acceptance as an obligatory provider related to basic living security, ⑦  acceptance as a person subject to housing-related legal protection, ⑧ acceptance as a protector of persons with developmental disabilities, and ⑨ expansion of persons subject to single-parent family support.

- With respect to the legal acceptance model of various types of families, where opposite-sex couples are categorized into marriage and same sex couples into registration according to the dualistic legislative model, this also results in the restriction on the freedom of choosing a relationship other than legal marriage in cases of opposite-sex couples, and the freedom of choosing legal marriage in cases of same-sex couples. However, it is reasonable to establish the dualistic legislative model in consideration of the transitional stage.

- There are currently arguments for and against the abolition of the Ministry of Gender Equality and Family in the Government and various sectors, and this is the issue of the Government’s policy decision. 

 

Ⅲ. Expected Effects

○ Establishing the standards for improvement of the legal system related to the acceptance of and support for various types of families

○ Suggesting a plan for legislation related to the acceptance of and support for various types of families

○ Serving as data related to legislation of the acceptance of and support for various types of families