하단의 논문은 서울대학교 아시아태평양법연구소 아시아태평양법 국제교류기금의 학술연구비 지원을 받은 학술논문입니다.
최준규, "출산 경력의 불고지가 혼인취소 사유에 해당하는지 여부―대법원 2016.2.18. 선고 2015므654, 661 판결―" , 『가족법연구 』, Vol.31, No.2 (2017), pp. 307-362.
기망을 이유로 한 혼인취소, 고지의무, 사생활의 비밀과 자유, 자율성과 관습, 개인의 권리에서 공동체의 의무로, 소수자를 보호하는 법률해석 marriage cancellation based on fraud, the duty of disclosure, the privacy right, autonomy and convention, from individual rights to communitarian obligations, interpretive canon that favors social minority
Concealment of past child-bearing as ground for marriage cancellation
This article is commentary on Korean Supreme Court Decision on Feb. 18. 2016, Case no. 2015Meu654, 651. The main issue of this case is whether it constitutes a ground for marriage cancellation based on fraud (Korean Civil Act Article 816 subpara. 3), to conceal from the other party one’s past child birth, in cases where Vietnamese female got pregnant as a child victim to sexual assault and gave birth, but the relationship with the child was cut off for a considerable time. My conclusions on this issue are as follows. First, marriage should not be cancelled for the mere reason that if the innocent party knew the truth, he or she would not have consented to the marriage. Marriage may be cancelled by court, when the fraud is with respect to some facts that affect in a vital way the essence of the marriage relationship. And court should also take into account the public policy, communitarian values, social ethics, and the situation that the innocent party can terminate the marriage by way of divorce. Accordingly, premarital duty of disclosure should be imposed with caution. Second, in principle one has to disclose his or her past child-birth to the other party before marriage. But when one got pregnant as a child victim to sexual assault and gave birth, we should protect her personality right & privacy right. So concealment of her past child-bearing does not constitute fraud. Furthermore, she should be allowed to lie, when asked if she bore a child before marriage. Third, when one was kidnapped and forced to marry as a child (The custom of bribe kidnapping still remains in northen Vietnam, Kyrgyzstan etc), after that got pregnant and gave birth during such a forced marriage, we should also protect her personality right & privacy right. She is rather a child victim of illegal confinement, sexual assault and anti-humanitarian convention than a wife or mother with a free will. So, concealment of her past child-bearing does not constitute fraud and she should also be allowed to lie before premarital question. As a result, the other party’s freedom to decide whom to marry may be restricted, but it should be recovered in a different way, namely by way of our making efforts to exterminate the child sexual assault and forced marriage on earth (communitarian solution). Fourth, when the meaning of legal text is unclear and it is difficult to balance the conflicting interests of concerned parties to whom that legal text is applied, it may be desirable to interpret the law in favor of the concerned social minority. My conclusion for the protection of Vietnamese female who was a child victim of kidnapped marriage is also justified on such a interpretive canon.
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