유럽에서의 동성혼인 및 동성결합에 관한 최근의 동향

The Recent Trend of the Same-Sex Marriage and Same-Sex Partnership in Europe

This paper reviews the recent trend of the same-sex marriage and same-sex partnership in Europe and analyzes the implication thereof for the Korean Law. In 2015, the decision of Oliari v. Italy by the European Court of Human Rights opined that Article 12 of the European Convention on Human Rights (Right to marry) did not guarantee the right to marry for same-sex couples. However, it declared that Italy bore the positive obligation to provide the legal institution for the protection of the same-sex couple based on the Article 8 of the European Convention on Human Rights (Right to respect for private and family life). In July 2017, Germany enacted new law permitting same-sex marriage. There was controversy whether it was unconstitutional. However, even the state of Bavaria, the most conservative one, gave up the plan to raise the constitutional complaint against the new law. In December 2017, the Austrian Constitutional Court declared that the prohibition of same-sex marriage was unconstitutional in Austria. However, this decision was much criticized, as it was contradictory to the precedents of the Austrian Constitutional Court and the European Court of Human Rights. Looking at the Korean Law, against the backdrop, the Korean Civil Code does not permit the same-sex marriage. Nor can it be said that this is unconstitutional. However, the law should be changed to recognize the same-sex marriage, based on the constitutional right to pursue happiness.