가족법에 있어서의 ‘당신도’라는 코드의 작동과 그에 대한 도전

The Operation and Challenge of the Code of ‘You, too’ in Family Law: Multicultural Family and Same-Sex Marriage

This paper is written on the base of the one of methods and theories of Niklas Luhmann. According to Luhmann, Legal system has codes which cognize environment and differentiate illegal/legal, non-adaptive/adaptive and include selectively only the latter to sustain and evolve autopoietic system itself. And ‘You, too’ is one of the most popular codes. In so many cases, ‘You, too’ code is operated to apply same statutes to pending similar case supported by equality. In the field of Family Law of Korea, especially regarding gender equality, there have been many cases ‘You, too’ code used. And recently multicultural family and same-sex marriage have become main objects of that code. Firstly, in Korea, multicultural family is constructed by international marriage, between mostly Korean man living in rural communities and foreign woman, which is encouraged by government that you, rural bachelor, can get married, too. Secondly, although same-sex marriage is not yet possible in law, such marriage is argued that homosexual partners have equal rights of marriage. But multicultural family and same-sex marriage composed by ‘You can marry, too’ have severe limits; Multicultural family assumes existing normal partriarchal family so there are problems such as family violence intact and in even worse human rights violations and just assimilation to Korean family is pushed without understanding multiculturalism. And in so far as same-sex marriage is claimed legal one there are little room for alternative intimate relationship. In that manner, with the support of sameness code, family law system will still survive in spite of many challenges and we might live in that cage for long time.