국민건강보험법에서 직장가입자의 배우자의 의미와 범위 – 동성결합을 중심으로 –

In general the de facto marriage is by law included in the spouse on account of their necessity of social protection. By the way the same clause lacks in the national health insurance act. Nevertheless the medical care is provided to it in the practice of the national health insurance. Now the question is brought about whether the civil partnership could be protected in the way that it’s counterpart is not levied the contribution to the national health insurance like spouse. In this article, first, it is argued that the de facto marriage should be included in the spouse according to the national health insurance because of its special function. Second, it is described whether (by way of the broad interpretation supplemented) the provision on the de facto marriage could be applied to the civil partnership as well in the national health insurance act in the context of the possibility and limit of the broad interpretation and analogy. Third, it needs to be examined whether the exclusion of the civil partnership from the range of the spouse protected by the national health insurance act would be tantamount to be a prohibited discrimination based upon sexual orientation, because the de facto marriage and civil partnership performs the same function. But the civil partnership to date did not form its own type with core elements, so that the former could not be compared to the latter in the review for discrimination. In addition it should be stressed that it belongs to the task of the constitutional law to protect the civil partnership by logic of the discrimination. Because the judge makes an individual decision in the judicial dispute it would harm the legal stability if the judge creates a legal norm on the base of the constitutional law. In this case it could conflict with the competence of the constitutional court as well as of the legislature. Further it could confuse the legal system because it would concern the whole social security acts.