사실혼의 요건에 관한 小考

A Study on Requirement of “De-Facto Relationship”

This study aims to probe the legal aspect of the De-Facto Relationship. As everyone knows, Korean jurisprudence consider the De-Facto Relationship as a quasi-marriage. So-called “quasi-marriage theory”, however, has been a target of criticism nowadays. First of all, there are diverse patterns of the De-Facto Relationship, but “quasi-marriage theory” cannot grasp the legal problem of the De-Facto Relationship wholly. Finally, according to “quasi-marriage theory”, a scope of De-Facto Relationship is limited too much. Futhermore, judicial precedent cannot apprehend the requirement of De-Facto Relationship logically. For instance, Korean Supreme Court―as well as majority of literature― identify subjective requirement of the De-Facto Marriage with the agreement of the legal marriage. But it is not logical, nevertheless proper. Finally agreement of marriage as subjective requirement of the De-Facto Relationship should be considered as a intention to form a substance similar to marriage. A bigamous relationship is relevant to De-Facto Relationship as well. It is, however, possible to regulate a bigamy through general principle(such as good faith, public order etc.), and is suitable to answer a concrete situation.