민법상 금혼규정의 헌법적 고찰

The epoch-making decision of the Korean Constitutional Court on July 16, 1997 declared that prohibiting the marriage between a man and a woman with a common surname (sŏng) and ancestral seat (pon’gwan) was unconstitutional. After this decision, there has not been much constitutional discussion over other provisions of the Civil Code which prohibit the marriage between other relatives. Viewing from the constitutional perspective, however, the current rules of marriage prohibition are certainly problematic. Intriguingly enough, the problem of current rules of marriage prohibition that excessively restrict the freedom of marriage has seldom been studied. This paper studies this constitutional problem. The prohibition of marriage between blood relatives, in principle, is not unconstitutional. The problem of present restriction is that the range of the relatives to which such restriction is applied is too broad. The range should be narrowed, so that the current rules of marriage prohibition infringe upon individuals’ freedom of marriage could be lesser. The marriage prohibition between relatives by affinity in the collateral line is unconstitutional. On the other hand, such prohibition between relatives by affinity in the direct line is not. Also the marriage between the collateral blood relatives by adoption should be allowed if the adoption is dissolved. However, the prohibition of marriage between the direct blood relatives by adoption should be sustained notwithstanding the dissolution of the adoption.