Legal Recognition of Same-Sex Relationships in Korea and Europe

Abstract

AbstractThe sexual orientation is considered as important grounds not to discriminate. Sexual orientation should be protected as a significant reason not to discriminate through the methods of interpretation. The Korean Constitutional Court interpreted discrimination based on sex narrowly, and sexual orientation is not included as grounds not to discriminate. The Korean Court’s different treatment of same-sex couples and different-sex couples is not a matter of discrimination based on grounds of sex, which is included in the protected scope of the Korean Constitution as such discrimination is not prohibited. The Korean Constitutional Court has excluded sexual orientation from a subject of protection from discrimination even if a different treatment cannot be justified without a valid reason or reasonable excuse.This chapter aims to present an overview of the legal recognition of same-sex relationships in South Korea as well as in Europe because it is important to know specific contexts where the discussion takes place from a comparative perspective (A. Barak discusses the importance of comparative law as extending the judge’s horizons, awakening judges to the potential latent in their own legal system, making the interpreter aware of links between a solution to the interpretive problem he or she faces and other legal problems, and serving as an experienced friend (Barak 2005, Tul Law Rev 80:195).). I will discuss the background information of same-sex relationships in South Korea including how the debate has developed as well as the general situation of sexual minorities. Subsequently, an overview of the legal recognition of same-sex relationships in Europe will be introduced with a theoretical framework and prominent issues. This chapter concludes with brief implications on convergence and divergence with such debates in South Korea and Europe.KeywordsLegal recognition of same-sex relationships in KoreaLegal recognition of same-sex relationships in EuropePluralistic modelDualistic modelMonistic modelConvergence and divergence