유럽에서의 同性婚 合法化 傾向 - 특히 영국과 프랑스를 중심으로 -

The Discussion on legalizing same-sex marriage began about 20 years ago at the European level, but there’s no binding regulation to enforce the member states of EU or European Council to allow same sex marriage or civil union. Also the European court of Human Rights declared that the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State. The Court reiterates that it must not rush to substitute its own judgment about marriage in place of that of the national authorities, because marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. But this statement doesn’t mean that the principle of non-discrimination on account of sexual orientation plays no role at the level of EU und European Council. For example European Court of Justice ruled that the refusal to grant the survivor’s pension to same-sex partners constitutes direct discrimination on grounds of sexual orientation. Also according to the recent judgement of ECtHR the margin of appreciation in relation to unequal treatment based on sex or sexual orientation is narrow, so that it must be shown that such a discriminatory measure was not merely suitable but necessary in order to achieve the aim sought. Based on this consideration ECtHR ruled that Greece had violated the European Convention on Human Rights by excluding same-sex couples from a civil union. In the meanwhile more and more European countries legalize same-sex marriage. Since Netherland legalized same-sex marriage in 2000 first in the world, 9 member states of EU and 11 Contracting states of European Council grant same-sex marriage. Among them especially England and France deserve further research and study in consideration of the important position which these states occupy in the EU and in comparative law study. In UK the Civil Partnership Act 2004 enabled same-sex couples to obtain legal recognition of their relationship by forming a civil partnership. Although CPA 2004 allowed to civil partners same rights and responsibilities as married couples in many areas including tax, social security, inheritance and workplace benefits, but some have argued that there are still differences in the perception of the two institutions and these arguments have been advanced that same sex couples should be able to marry. Worth noting is that the role of Courts which contribute traditionally to enhancing human rights was in developing the arguments for allowing same-sex marriage limited. In Wilkinson v. Kitzinger the High Court of Justice announced that the prohibition of same-sex marriage is no discrimination of European Convention of Human Rights, taking into consideration that English law already granted to homosexual couples to live in a very close, loving, and monogamous relationship. By contrast the government and parliament of England found it insufficient only to grant same-sex couples very similar legal position as that of conjugal couple. Also same-sex couple should be provided with the same opportunity to recognize that commitment in the valued institution of marriage In addition it was taken into account that the recognition of same-sex marriage will also get rid of some discriminatory differences between civil marriages and civil partnerships. Finally the Marriage (Same Sex Couple) Act 2013 enables same sex couples to marry, either in a civil ceremony or with the marriage being solemnized through a religious ceremony. But the legislator took caution not to compel religious organizations to conduct marriages for same sex couples, so same sex marriage ceremony on religious premises is permitted only when the religious organization consents. Under the previous French Code Civil, a marriage could only be between a man and a woman. But the legislation of the Pacs (Civil Union) in 1999 offered to the possibility to conclude a homosexual civil union. In comparison with the civil partnership of UK the French institution is open not only to homosexual but also to heterosexual couples. Whereas the CPA 2004 accords substantial equivalent legal position to same-sex couples the Pacs offers a much weaker version. Although the amendment of Pacs in 2006 reinforced the binding effects of this institution, the rate of same-sex couples entering into the Pacs to heterosexual couples has been reduced consistently. In fact the majority of couples taking advantage of Pacs are now heterosexual couples who choose civil union rather than marriage for one or another reason. For the heterosexual couples the weak binding effects of it are less of a concern, because they are awareness of it, nevertheless prefer Pacs to marriage. But homosexual couples have no alternative but Pacs, therefore it would constitute serious discrimination. In 2013 the French parliament adopted a law which grants same-sex couples the right to marry and jointly adopt children and Conseil constitutionnel upheld the constitutionality of this law. Interestingly also the French Courts including Conseil constitutionnel have previously restrained themselves from condemning the prohibition of same-sex marriage as a violation of the French Constitution and of ECHR. Such an attitude of the French Courts was based on the consideration that the value judgement of the legislator should not be replaced by the Courts. The Korean Civil Code and Family Register Act include no provision which limits eligibility for marriage to opposite sex couples. But Art. 36 (1) of Constitution of the Republic of Korea provides that marriage and family life shall be entered into and sustained on the basis of individual dignity and “gender equality”. The Wording “gender equality” shows that heterosexual marriage is the premise of the marriage institution guaranteed by the Korean Constitution. Because of constitutional supremacy all statutory laws should be interpreted in the light of the Constitution, so it’s not plausible that the same sex marriage in Korea could be permitted de lege lata. But this provision wouldn’t mean, in my opinion, that a legislative amendment recognizing relationships between same-sex couples is unconstitutional. First of all, civil union is a separate institution from marriage, as British and French legislators and German Constitutional Court declared several times. Also recognition of the same sex marriage doesn’t violate Art. 36 (1). The aim of this provision lies in removing irrational elements of the traditional patriarchal family law and in establishing the principles of human dignity and gender equality on the field of family law rather than in emphasizing that the marriage institution is limited to heterosexual marriage. Therefore same-sex relations could be recognized even without a constitutional amendment, if Korean legislator would find the recognition of same-sex marriage in Korea necessary.