1987년 이후 가족법의 변화에 관한 법사회학적 고찰

In which sense and degree, has democratization in Korean society left influence on family and family law? Based upon two times of revised statute of family law in Korea, that were the revisions in 1989 and 2005, this essay pursues an inquiry that examines the nature of relationship between law and society. In detail, the study problematizes five themes as follows: First theme is the meaning of gender equality as protected as a fundamental right in the Constitution of Korea. Right and value of gender equality have been well realized especially in the 1989 revision. The essay also examines how gender equality was substantiated in the context of a Constitutional case on Family-head system particularly in relation with ‘tradition.' Second, there have been rapid and enormous changes in the Korean family in respects of divorce, remarriage, low birth rate, etc. How are there family realties accommodated in the family law especially in the statute revised in 2005? The study examines this question in terms of relationship between the state, family and individuals. Third, another critical topic in the current Korean family would be the issue of ‘care' as works and ethics. How would the state and society evaluate and redistribute the care work that used be allocated in the family and mostly done by women? In the context of increase in divorce and aged population, such question becomes more and more critical as a principle as well as a task of the family policy. Fourth, the relationship between democratization and ‘private sphere' would be one the most important theoretical question in this essay. While discussing Western feminist scholars' engagement in the split of public and private sphere, and reevaluation of the privacy, I rather stress the importance of locating this issue in the context of Korean society and history. Fifth, in relation, the essay mobilizes the postcolonial theorization of the law and society during and after colonialism. In so doing, the study raises the question if the social space of family/kin in Korea has been tantamount to the ‘private sphere' in the West. Rather, the study suggests that it has been the area of tradition and custom that has been incessantly constructed throughout Korean history. Particularly, it emphasizes importance of facing colonialism embedded in the custom and tradition in Korea, as the critical historical moment when the notion has encountered with modern law and thus been frozen. In so doing, a feminist sociological review of the family law re-discovers the lighted and shadowed area of ‘democratization' in Korea.