가족의 범위

Problems in Defining the Boundary of Family in Civil Law

&nbsp;&nbsp;This article focuses on the Constitution, laws other than civil law, actual concept of family and so on to consider whether it is necessary to define the boundary of family in civil law, and if it is, then whether the revised boundary of family is desirable.<BR>&nbsp;&nbsp;First of all, the boundary of family in civil law is in acordance with the constitutional principles such as ‘equality of both sexes’ and ‘dignity of individuals’. The specific boundary of family in civil law is slightly different from that of the Constitution, but since the Constitution does not state it directly, and the legislators have a wide range of freedom to legislate within the constitutional principles, this ‘boundary of family’ should not be considered to be opposing to the constitutional principles.<BR>&nbsp;&nbsp;As for the ‘boundary of family’ in other laws, concepts and ranges are very confusing. There are two ways to overcome this conceptual confusion. One way is to remove the word ‘family’ and indicate specific boundaries for each statute related to ‘family’. The other way is to revise the parts that contradict in different laws, and suggest an unified concept. It is said that the statute in civil law is regulating the ‘boundary of family’ only as a symbolic sense to ease the impact of abolishing the householder system. However, since the legal concept of family is stipulated in statutes, the concept should be unified for legal stability. The former way may seem reasonable in a sense that it can cover the various concepts of family. Only, if there are family related statutes in many laws without specified boundaries indicated, then civil law should be able to suggest the standard.<BR>&nbsp;&nbsp;The family system of civil law is regulated in the premise of the Constitution, so on one hand the boundary of family should be in accordance with the principles of the constitution. On the other hand, the actual concepts of family in reality should be considered as well. In this point of view, the ‘boundary of family’ in the revised civil law should be re-examined. Lineal ascendants above grandparents, and lineal descendants below grandchildren, brothers and sisters should be considered one family only when they are living together. Thus Article 779(1) is to be limited to spouse, parents and children.<BR>&nbsp;&nbsp;According to the revised civil law, lineal ascendants above grandparents, lineal descendants below grandchildren, brothers and sisters are included in the boundary of family when they live together(Art.779(2)), but there is necessity to discuss more on determining the boundary of collateral relation by blood and of relation by marriage. This is because there is no precise reason in the revised civil law which mentions why the third degree of kinship by blood is considered ‘relatives’ and why people who form the ‘community of livelihood’ are excluded from the boundary of ‘family’. This discussion is closely related to the boundary of family in civil law, and the ‘boundary of relatives’ as well as the ‘boundary of family’ should be revised according to reality.<BR>&nbsp;&nbsp;Also, certain statutes about ‘family’, such as that of the parties to furnish support, contradicts the boundary of family, and it is desirable to revise such statutes to suit the ‘boundary of family’ in civil law.