국민건강보험법상 동성 결합 상대방의 ‘피부양자’ 인정 여부에 관하여 - 서울고등법원 2023.2.21. 선고 2022누32797 판결을 중심으로 -

Spouses including partners under de facto marriage between different sexes have been recognized as dependents of employee insured by the National Health Insurance Law. However, about those who are under de facto marriage between same sexes, there are still ongoing controversy about whether to protect them as ‘de facto marriage with given legal protection’ including the protection by the Law as dependents. Apart from this problem, it is necessary to discuss how to include and protect those with same sexes but under de facto marriage in the legal boundaries of social protection. This issue is a very important matter to be dicussed in the current society where the concepts of “family”, “society”, “community” and “spouse” are changing rapidly. In the subject judgement, the National Health Insurance Service denied the same sex life partner as a ‘spouse’ of an employee insured under the National Health Insurance Act. However, the Seoul High Court, by applying the Principle of Non-Arbitrariness as the criterion for the principle of equality, invalidated the decision of the Service because the Service failed to provide a reasonable justification for the discrimination. Despite the several shortcomings in the judgment, the decision holds legal significance as it provides a starting point for a new discussion on the definition and concept of ‘spouse’ under the Act.