혼인의 무효, 취소규정의 정비를 위한 검토

The Provisions of Korean Family Law on the Void Marriage and Voidable Marriage - A Proposal for Amendment -

The main purpose of this paper is to analyze the problems of Korean Family Law provisions on the invalid marriage and to propose their amendment. Their main problem seems to be the lack of express stipulation on important aspects and their incoherence. Korean Family Law provides two types of invalid marriage - void marriage and voidable marriage in different provisions. As to the void marriage, it provides only the grounds and damages, lacking the provisions on the way of to claim and the effect of void marriage. This lack causes severe confusion in important aspects of void marriage. The reasonableness of the causes of void marriage also seems to be a problem. As to the Korean Family Law provisions on the voidable marriage, they are better than those on the void marriage, in that they provide claimant and statute of limitation. But there are some problems in their system and coherence. To solve these problems, this paper suggests as follows: 1. It is necessary to amend art. 809 sec. 1 as to provide the degree of family relationship as a cause of void incest marriage, and art. 809 sec. 2 as to provide the degree of family relation as a cause of voidable incest marriage. It is also necessary to supplement art. 816-1) (action for voidable marriage) so as to expressly include the cause mentioned in art. 809 sec. 2 and to make new provision of art. 815-2) (action for void marriage) to stipulate the cause mentioned in art. 809 sec. 1. 2. It is desirable to make new provision on action for void marriage numbered art. 815-2). 3. It is reasonable to amend art. 822 and art. 823 in order to stipulate clearly that the claimant of action for voidable marriage is the party to the marriage concerned. 4. It seems to be necessary to evaluate the necessity of new provision on the causes of voidable marriage numbered art. 816-2). 5. It also is necessary to reevaluate whether the causes of voidable marriage provided in art. 810 is reasonable. 6. It is proper to amend art. 825 as to provide that art. 806 and art. 839-2 apply, mutatis mutandis, to void marriage and voidable marriage.