한미양국의 혼인법의 비교연구

Abstract

The law of the State of South Dakota said in its Title 14: Domestic Relations, Chapter 14, 01, Marriages; “Incestuous relations; parental relationships; bigamous marriages; mixed race marriages; null and void from the beginning. The following marriages are null and void from the beginning”. (1)(2) and (3) are omitted, (4) The intermarriage or illicit cohabitation of any person belonging to the African, Korean, Malayan, or Mongolian race with any person of the opposite sex belonging to the Caucasian or white race from 1926 till 1957. This section of the law was fortunately repealed by the South Dakota Legislature on February 5, 1957. With this repealment it has revoked the law which specifically outlaws the marriage between a Korean and Caucasian from the world. However, there are six states, Arizona, Mississippi, Missouri, Nebraska, Utah and Wyoming, which prohibit intermarriage of Koreans by the general conception of Mongolian and 23 jurisdictions prohibit inter-racial marriages in most of which the law only applies to Negroes and whites. There is no direct provision which limits the marriages because of racial differences in Korea. But, the first part of paragraph, Article 15 of inter-state private law says, “the validity of marriage is governed by the national laws of the persons involved”. Consequently, if marriage is nullified like in Arizona, that marriage is not valid in Korea so long as that person is concerned. Dr. Chester G. Vernier, author of “The American Family Laws,” mentioned this more than half a century ago, “Their statues are not explained by the presence of any considerable number of Negroes nor of any social or economic problems resulting therefrom. But racial prejudice, social or ethnological considerations, or the dogma of white superiority, have resulted in the prohibition of inter-racial marriages.” As far as the prohibition of inter-racial marriage has no logical or scientific ground, it shall be abolished sooner or later as in South Dakota. Even though the speed of correction is quite low as a result of the specific conservative character of family law, we can see the bright future for the progress of the United States marriage laws because the number of states that prohibit inter-racial marriage decreased to 23 from 29 in the past decade. For this reason, I realize that the unification of World Marriage Laws is possible. The recent development of human civilization has achieved a shortening of the distance and time of the world and increased mutual understanding in every political, economic, social and cultural field. Therefore, if it is possible to seek a centripetal point from the varied marriage laws, it will bring a great contribution for increasing human happiness. There are number of scholars who asserted the possibilities of the World law, especially in the field of economical property law; however, there are few in the field of domestic relations law. The reason may be grounded in the specific character of illogical human relations which differ from the field one is interested in, if it is really possible to unify the world marriage laws, it must be very worthwhile to make a comparative study of marriage laws between the United States and Korea thinking what thesis shall offer the best provisions. In the past, Korean marriage law was adapted from china, but nowadays it is adapted from the European Continent. American marriage laws are developed from Britain common law, but it is provided for under different principles. Therefore, the comparative study of the laws of these two countries will almost be the same as a comparison of all the world marriage laws. At first, I studied the historical change of Korean marriage law, the contemporary Korean marriage law which was affected by French, German and Swiss law. Secondly, I studied American marriage laws in force, dividing into common sections such ass Marriage Formalities, Nullity of Marriage, Common Law Marriage, The Proofs and Effects of Marriage, The Dissolution of Marriage, etc., and made a comparative study to the Korean one. Finally, I classified it into 3 parts and sought to answer the question for unifying the world marriage laws.