18. Claimant for Annulment of Bigamy

[22-2(A) KCCR 113, 2009Hun-Ka8, July 29, 2010]

In this case, the Constitutional Court decided that Article 818 of the Civil Act, which excludes lineal descendants from the list of people who can file a claim for annulment of bigamy, runs afoul of the Constitution in violation of the principle of equality as it discriminates against lineal descendants without legitimate reasons. In order to prevent the state of legal vacuum, however, the Court rendered a decision of incompatibility with the Constitution and therefore, the Instant Provision shall be tentatively applied until the legislature amends it by December 31, 2011.

Background of the Case

In 1933, movant's father (hereinafter," the deceased") married his biological mother (hereinafter, "A") in a region that is currently included in North Korea and the movant and his siblings were born to them. Later in 1959, the deceased registered A's death in South Korea although A actually did not die (A died in 1997). After then, the deceased married another woman who had been his wife until he died (hereinafter, "B"), registered the marriage and children were also born to them. The deceased died in 1987 and on February 16, 2009, the movant filed a claim for annulment of bigamy against B who is still living (Seoul Family Court 2009DeDan14527).

While pending the case, the movant filed a motion to request for constitutional review of Article 818 of the Civil Act (hereinafter, "Instant Provision") on June 8, 2009(2009ZeGi666). Thereupon, the court granted the motion and requested for a constitution review of the Instant Provision to the Constitutional Court.

Provisions at Issue

Article 818 (Claimant for Annulment of Bigamy)

In the case of marriage in violation of the provisions of Article 810, a claim for annulment of the marriage to the court may be made

by either party, the spouse, the lineal ascendants, the collateral blood relatives within the fourth degree of relationship, or a public prosecutor.

Summary of the Decision

In an opinion of 7(incompatible with the Constitution): 1(unconstitutional) :1(constitutional), the Constitutional Court declared that the Instant Provision is incompatible with the Constitution for the following reasons:

1. Court Opinion

The Instant Provision, stipulating a list of people who can file a claim for annulment, excludes the lineal descendents while including the lineal ascendants and the collateral blood relatives within the fourth degree of relationship. Here, we will review whether such stipulation violates the principle of equality, discriminating against the lineal descendants without legitimate reasons.

First, comparing parents who are the closest lineal ascendants of the person who commits bigamy with sons and daughters who are the closest linear descendents of the person who commits bigamy, they are all in the first degree of relationship. The discrimination between them in the Instant Provision, therefore, seems simply based on the patriarchal and feudal order that children are not allowed to take any issue with their parents' bigamy, but no other legitimate reasons were found. Our Court, in the decisions of incompatibility with the Constitution regarding the House head System case (2001Hun-Ka9, February 3, 2005) and Same-Surname-Same Origin Marriage Ban case (95Hun-Ka6, July 16, 1997), has declared that the ideology of patriarchy goes against the constitutional order of marriage. Therefore, excluding the lineal descendents whose legal interests regarding the right of inheritance are as grave as those of lineal ascendants from the list of people who can file a claim for annulment of bigamy is merely based on the relics of patriarchy which have not been tolerated by our Constitution since its enactment, and as a result, its legitimacy

cannot be recognized.

Further, among the collateral blood relatives, uncles, cousins, nieces and nephews who are not even included in the scope of family as stipulated in the Civil Act may have the right to file a claim for annulment of bigamy. It is unreasonable that while cousins who can be younger than a lineal descendent have the right to file a claim for annulment of bigamy, the lineal descendent, who has more legal interests in the claim for annulment of bigamy, for example, the amount of his/her inherited property can be increased or the payment order of veteran payments eligible to receive the compensations stipulated in the Act on the Honorable Treatment and Support of persons, etc. of Distinguished Services to the State may be different by annulment of bigamy, does not have the right to claim for annulment of bigamy.

Meanwhile, there is an argument that since a public prosecutor is included in the list of the person who can file a claim for annulment of bigamy, the illegitimacy of such discrimination can be mitigated although lineal descendents are excluded. But, considering the fact that there is no procedural provision through which a lineal descendent can request a public prosecutor to exercise his/her right to file a claim for annulment of bigamy and that, although it is possible for a lineal descendent to request a public prosecutor to file a claim for annulment, it is only a way to just encourage the public prosecutor to exercise the authority, simple inclusion of public prosecutor in the list seems far short of correcting the illegitimacy of the discrimination reviewed above.

Consequently, the Instant Provision violates the principle of equality and the Constitution, as it gives a right to file a claim for annulment of bigamy to the lineal ascendants and the collateral blood relatives within the fourth degree of relationship while not to the lineal descendents without legitimate reasons.

However, should the court decide on the Instant Provision as unconstitutional and thereby it loses its effect immediately, legal vacuum would occur. In order to prevent such state of vacuum, the Court declares the Instant Provision as incompatible with the Constitution and it shall be tentatively applied until the legislature revises it by December 31, 2011.

2. Concurring Opinion of One Justice

The holding should not be a decision of incompatibility with the Constitution but be a decision of limited unconstitutional with the subject matter of review specified. The decision should say that "the Instant Provision's failure to stipulate the lineal descendents as ones who can file a claim for annulment of bigamy while including the lineal ascendants and the collateral blood relatives is in violation of the Constitution."

3. Dissenting Opinion of One Justice

Considering the facts that in most cases of bigamy, a prior marriage is actually dissolved and a subsequent marriage works as a real marriage and that the Civil Act stipulates bigamy not as one of the causes for nullity of marriage but as one of causes for annulment of marriage, it is proper to consider that annulment of bigamy should be left to the right to self-determination of the person whose legal rights are directly infringed by a bigamy and that person's spouse.

to the right to self determination of the person whose legal rights are directly infringed by a bigamy and his/her spouse. Therefore, the part in Article 818 of the Civil Act which provides for "the lineal ascendants, the collateral blood relatives within the fourth degree of relationship" as the ones who can file a claim for annulment of bigamy should be regarded violating the Constitution, illegitimately infringing the marital right and the self determination regarding marital relationship of the person directly involved in bigamy. As a result, we should not declare that the Instant Provision's failure to include the lineal descendents in the list of people who can file a claim for annulment of bigamy is in violation of the Constitution.