헌법 제36조 제1항에 따른 건강가정기본법의 개정 필요성

It is clear that marriage, blood tie, and adoption have traditionally been the main factors in forming a family. However, in modern times, new family types not based on these factors are emerging and expanding, and social tolerance for these families is also growing. Consequently, the question of how to normatively accept these new family structures has arisen. But the existing interpretation of Article 36, Paragraph 1 of the Constitution is based on a traditional social view that emphasizes marriage and blood ties, making it difficult to include newly emerging families. Furthermore, the Framework Act on Healthy Families, which can be considered the basic law for families, also primarily targets living communities formed through marriage, blood tie, or adoption. In short, while the need to protect new family types is expanding in society, normative acceptance has not kept pace. This paper attempts to reinterpret Article 36, Paragraph 1 of the Constitution to align with modern social realities, and based on this reinterpretation, it seeks to examine the problems of the Framework Act on Healthy Families and propose directions for its improvement. I argue that Article 36, Paragraph 1 of the Constitution is a social fundamental right for the following reasons: 1) A review of the history of how marriage and family provision was newly introduced into the Constitution as originally adopted in 1948 shows that this provision was considered to be social fundamental right at the time. 2) The practical meaning of Article 36, Paragraph 1 lies in the state’s duty to provide support for the formation and maintenance of marriage and family within the limits of its financial resources. If Article 36, Paragraph 1 is understood as a social fundamental right, there is no reason to narrowly define the term “family”, as in previous interpretations. This is because, even if the scope of protection under Article 36, Paragraph 1 is broadly recognized, citizens cannot make any specific claims directly based on it. It is more desirable to broadly recognize the scope of protection than to narrowly interpret it and exclude new family types from the beginning. Meanwhile, the concept of “family”, unlike “marriage”, is not an established legal concept, and the Constitution has the characteristics of being the supreme and framework norm. Therefore, there is no need to interpret the constitutional concept of “family” restrictively as traditionally understood. Rather, the concept of family needs to be interpreted more comprehensively to accommodate changes in social reality and secure the Constitution’s normative power. According to this constitutional interpretation, it is problematic to limit the definition of “family” or “household” under the Framework Act on Healthy Families to a community formed (in principle) by marriage, blood tie, or adoption. To effectively serve as a link between the Constitution and specific family-related laws, the definition of family and household in the Framework Act on Healthy Families needs to be revised to be more comprehensive and flexible.