동성혼 소송의 쟁점과 비판적 검토

This paper aims to examine whether same-sex unions can be recognised as legal marriages under the current legal framework, focusing on the first same-sex marriage lawsuit filed domestically in 2014 and the eleven simultaneous collective same-sex marriage lawsuits filed in 2024, approximately ten years later. Accordingly, this paper analyses the interpretation and legal justification of the current Constitution and Civil Code, arguing the validity of existing court precedents that cannot recognise same-sex marriage as a legal marriage, and critically examines the claims of the constitutional petitioners. Article 36(1) of the Constitution stipulates that ‘marriage and family life shall be established and maintained on the basis of the dignity of the individual and equality between the sexes.’ The Civil Code also employs terminology premised on the distinction between male and female, such as “spouses”, “husband and wife”, and “parents”. Both the Supreme Court and the Constitutional Court have consistently defined marriage as “the physical and spiritual union between a man and a woman”. A majority of constitutional scholars maintain the view that under the current Constitution, marriage presupposes the union of one man and one woman and cannot be interpreted as encompassing same-sex unions. Therefore, the court’s determination that, under the ordinary interpretation of current law, a same-sex agreement cannot be regarded as a marriage agreement is valid. The recognition of same-sex marriage goes beyond a mere issue of legal interpretation; it entails a significant alteration to the institution of marriage and the family system. Demanding that same-sex unions, which fail to meet the requirements stipulated by the Constitution and statutes, receive equal treatment to lawful marriages is difficult to accommodate within the framework of the rule of law. Whether to recognise same-sex unions as legal marriages, and if so, what procedures and requirements should be established, are matters that must be decided through democratic consensus and resolution by the people, who hold the power to amend the Constitution, and the National Assembly, which holds legislative authority. Therefore, attempts to resolve this through new judicial interpretations or analogical reasoning violate the principle of the separation of powers, which strictly distinguishes the functions of the legislature, judiciary, and executive. Based on the principle of the rule of law, same-sex marriage cannot be recognised under the current legal system.