간행물

연세 공공거버넌스와 법 update

Yonsei Journal of Public Governance & Law

  • : 연세대학교 법학연구원 공공거버넌스와 법센터
  • : 사회과학분야  >  법학
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  • : 연속간행물
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  • : 2093-3592
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수록정보
수록범위 : 1권1호(2010)~10권1호(2019) |수록논문 수 : 98
연세 공공거버넌스와 법
10권1호(2019년 02월) 수록논문
최근 권호 논문
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1변호사와 공익활동

저자 : 김남주 , 김영희 , 김준우 , 박종운

발행기관 : 연세대학교 법학연구원 공공거버넌스와 법센터 간행물 : 연세 공공거버넌스와 법 10권 1호 발행 연도 : 2019 페이지 : pp. 1-43 (43 pages)

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2국제결혼 과정에서 이주 여성의 권리 ― 한국에 수용된 국제인권법과 국내법 ―

저자 : 이혜랑 ( Hyerang Lee )

발행기관 : 연세대학교 법학연구원 공공거버넌스와 법센터 간행물 : 연세 공공거버넌스와 법 10권 1호 발행 연도 : 2019 페이지 : pp. 45-77 (33 pages)

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Globalization has blurred the concept of national borders. With increasing numbers of international marriages, the Korean society is rapidly becoming a multicultural society these days. A common pattern can be observed since the 90s, where women occupy a relatively higher proportion of the immigrant population. It is also usual that international marriage in Korea results in a combination in which a Korean man marries a migrant woman. Furthermore, much of work available to migrant women is concentrated in the certain division such as entertainment industry or domestic services. This phenomenon can be called 'feminization of migration' which is relatively new and recently recognized field of human rights.
Every situation that a migrant woman encounters can vary. However, the fundamental cause of hardships lies mostly in the migration process of the foreign bride industry. Migrant women usually receive little information or a deliberate piece of misinformation. Also, marriage brokers control foreign brides systematically by recruitment, lodging, transportation and transfer. During the process of an international marriage, a single Korean man usually meet multiple women and choose one as a bride within a very short time frame. The decision is made consequentially without the consent of the woman. The cost and benefits of migration are distributed unevenly and the advertisements often contain gender discriminative and racist contents. Considering all these characteristics, International marriages through a Korean brokerage agency could be categorized as a form of human trafficking, which thereby lead to violence and exploitation of women.
State responsibility constitutes a central institution of the system of international law. The Republic of Korea has been a party to various human rights treaties including the Convention on the Elimination of All Forms of Discrimination against women and Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. Even though the rights of migrant women were not expressly stipulated in the text of treaties, the increasing use of soft law, which refers to quasi-legal instruments, extends the scope of application of law, while examining the situation of each country. Meanwhile, for the implementation of international human rights law, States should take steps to promote, protect and fulfil fundamental rights by accepting suggestions by the committees and reflecting the advisory opinions in government's policies. The committee expressed concerns on the issues of migrant women in Korea and suggested the state ratifying the protocol of human trafficking. Thus, the Republic of Korea has ratified the protocol and enacted the so called 'Marriage Brokers Business Management Act'
The purpose of this Act is to supervise marriage brokerage business as well as to protect users. The legislation has been made in conformity with international law accepting the principle of protecting human rights. However, the law regards international matchmaking as a contractual relationship and fails to protect migrant women in the process of international marriage, which is de facto human trafficking. Human Trafficking Prevention Act could be an alternative to supplement or amend existing legislation. Although the bill has not been passed, it suggests the direction of improvement in that it focuses on victims' safety, recovery and protection of rights.
The Republic of Korea has already signed and ratified various human rights instruments. But the government still needs to take legislative or other measures to ensure effective implementation of human rights law. The purpose of international human rights law is not the adoption of the conventions but the protection of human rights. In order to protect migrant women, the contents of the treaties adopted by the government should be transposed into domestic law. Also, for effective implementation of laws, government should adopt appropriate policies and enforce laws. There are various issues related to multicultural families. But the infringement of human rights in the process of international marriage and its brokerage need to be dealt with serious attention since it can lead to other related problems even after the process. Thus, protecting migrant women and contributing to creating a sound marriage culture would be a great starting point to address the issues of multicultural families.

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In this paper, I reviewed the validity of the majority opinion of the Constitutional judges, which described in the unconformity judgement of Article 844 Para. 2 of the Civil Code.
First, the majority opinion of the Constitutional judges, which concluded that Article 844 Para. 2 was beyond the limits of the right to form a legislative body, is valid. Despite the availability of the DNA test which could ensure the accuracy of paternity test, maintaining the existing system, relying only upon probabilistic assumption, not only interfered with the establishment of a true blood ties, but also hindered the welfare of child, resulting in failure to achieve the original intention of legislation. Though it is rather late, we could find the majority opinion meaningful in a sense that it found the optimal balance between the people's private autonomy and the legislative formation of the lawmaker by newly approving one's basic rights in line with social changes and correcting the constitutionality of the law.
Second, the majority opinion of the Constitutional judges, which decided unconformity judgement on Article 844 Para. 2, is reasonable. The true meaning of the above decision is that it is unconstitutional to allow the process of reversing the presumption of paternity only through the lawsuit against the former spouses. In this regard, the dissenting opinion suggested that they should have considered whether it could be seen as nonfeasance of legislation or not in that it did not specify a more resonable and convenient way to reverse the estimate. However, the constitutional court is narrowing down the adjudication only to the ground clause when the rule is unconstitutional in that the exception clause is deficient in spite of the constitutionality of the rule itself. Therefore, it is resonable that the majority of the opinion set Article 844 Para. 2 of the Civil Code as the adjudication, and it is also appropriate to declare unconformity judgement.
The Constitutional Court's decision paved the way for mother and 'real' father to form their true blood ties with those who were born within 300 days after the end of marriage. However, it is definitely a fault of legislators that not giving any effort to amend the unconstitutional condition in line with the social changes.

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해당 간행물 관심 구독기관

연세대학교 고려대학교 이화여자대학교 서울대학교 한국방송통신대학교
 42
 18
 18
 17
 14
  • 1 연세대학교 (42건)
  • 2 고려대학교 (18건)
  • 3 이화여자대학교 (18건)
  • 4 서울대학교 (17건)
  • 5 한국방송통신대학교 (14건)
  • 6 아주대학교 (9건)
  • 7 경남대학교 (9건)
  • 8 충남대학교 (9건)
  • 9 헌법재판소 (8건)
  • 10 수원가톨릭대학교 (7건)

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