동성 동반자가 국민건강보험제도의 피부양자로 인정받을 수 있는지 여부

The issue of the subject case lies in whether, with respect to the system of the dependents of the insured of the national health insurance, there is a procedural defect caused by failing to going through a prior notice in the instant disposition rendered by the Defendant, which cancelled the registration of the same sex partner of the employee insured as a dependent ex officio and imposed insurance contributions retroactively on the same sex partner as the self-employed insured and whether denying the status of the same sex partners as the dependents unlike the persons who are in the de facto marital relationship can be seen to have any substantial defect in violation of the principle of equality under the Constitution of the Republic of Korea. In relation thereto, the subject case accepted the judgment of the lower court which viewed that even though the instant disposition includes the details such as retroactively depriving the Plaintiff of the eligibility of the dependent based on a change in eligibility made by the Defendant, and thus the Defendant should give the Plaintiff a prior notice or an opportunity to submit his or her opinion in accordance with Article 21(1) of the Administrative Procedures Act before the instant disposition, the Defendant failed to perform such procedures mentioned above, and, according thereto, the instant disposition has procedural defects. With regard to substantial defects, the subject case, by extension, confirmed the duties of the State and local governments to observe the principle of equality under the Constitution of the Republic of Korea, to meet the level of development of the State, preemptively respond to changes in social environments, and establish a sustainable social security system, and to maintain balance between the level of benefits and apportionments of the costs of the social security system. Furthermore, the subject case reaffirmed the legal principle, under which the illegality of discriminatory treatment can be more widely admitted, through administrative authorities which should bear such duties. The Majority Opinion of the subject case, by taking note of the fact that: the recogniton range of the dependents of the insured has been extended; the Defendant, a special corporation for the public interest, performing the affairs such as the eligibility management of the insured or his or her dependent as the insurer of the national health insurance, which is the social security system, has the status as a person who exercises governmental power and fulfills the duty to protect the fundamental human rights; and Article 5(2)1 of the National Health Insurance Act merely regulates “spouses” and the Defendant, an administrative authority, recognized the persons who are in the de facto marital relationship for a long period of time as the dependents equivalent to a spouse by preparing internal rules, thereby establishing administrative practices, viewed that on the premise that just as the Defendant apply or analogically apply the above provision to the persons who are in the de facto marital relationship in order to prevent infringement upon the right to equality, the Defendant has authority or discretion to admit the status of the same sex partners as the dependents by applying or analogically applying the above provision to the same sex partners who formed a living community substantially the same to the persons who are in the de facto marital relationship, an act of the Defendant, which rendered the instant disposition, not recognizing the Plaintiff, who is the same sex partner, as the dependent of the insured unlike the heterosexual partners even though there is no fundamental difference between the heterosexual parter and the homosexual partner under the system of the dependents of the insured, can be seen to have discriminated against the Plaintiff unlike the person who is in the de facto marital relationship by disadvantaging the Plaintiff without reasonable grounds and thus is illegal. On the contrary, the Concurring Opinion of the subject case opined that on the grounds that, in that the above provision mentions the “spouses” of the employee insured as one of the dependents, which, as a concept that presupposes marriage, include “the persons who are in the de facto marital relationship” and exclude “the same sex partners” as marriage presupposes a heterosexual union under our legal system, and thus the Defendant’s discretion has no room to intervene in relation thereto and viewing that the validity of a marriage relationship exists in a homosexual union is difficult, “the same sex partners” and “the person who are in the de facto marital relationship” cannot be seen to fall under the same group of people fundamentally, even if the same sex partners are excluded from the dependents of the insured, this cannot be deemed arbitrary discrimination without reasonable grounds. The subject case dismissed the Defendant’s appeal by viewing that the judgment of the lower court, which determined that the instant disposition of the Defendant is illegal in violation of the principle of equality under the Constitution of the Republic of Korea with regard to the substantial defects is reasonable. Under the circumstances where there has been no precedent seen to the effect that discriminately treating the same sex partners unlike heterosexual partners is illegal in relation to a specific system, the subject case holds great significance in that it provided an opportunity to more faithfully guarantee the fundamental human rights under the Constitution of the Republic of Korea including the right to pursue happiness, privacy, and the right to be equal before the law, etc. by viewing that the status of the dependent that has not been admitted in relation to the same sex partners as such should be recognized on the premise that a homosexual union can be also recognized as the “partnership,” having a life together based on the duties to live together, support, aid each other, and keep chastity, first through judicial review over an administrative act conducted by an administrative authority according to Article 107(2) of the Constitution of the Republic of Korea. In Korea, bills for enactment of the Antidiscrimination Act, Life Partnership Relations Act, etc. to legalize a homosexual marriage have been proposed but have not been passed. The subject case merely admitted the rights of the same sex partners under the system of the dependents of the insured of the national health insurance, which is a specific social security system, and thus cannot be seen to be directly related to other social security systems as well as the marriage system under family law; however, it is expected to play a key role in making a fine hole in a strong barrier in our society against a homosexual union and putting the certain guidelines for the direction to move forward in relation to the protection of sexual minorities. In this regard, there is a keen interest on the development of the roles of the National Assembly, local governments, and the Constitutional Court including the enactment, etc. of related laws and regulations abolishing discrimination against sexual minorities in the future.