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연구정보

[법] 미얀마 가족법의 현황과 과제

미얀마 국내연구자료 학술논문 문흥안 한국가족법학회 발간일 : 2014-10-07 등록일 : 2017-10-12 원문링크

Myanmar is a multiethnic country composed of 7 administrative divisions and 7 tribal states. The 7 administrative divisions are located in its central area that is populated by Burmans, which is surrounded by the 7 tribes, i.e., Shan, Karen (or Kayin), Rakhine, Mon, Kachin, Chin and Kayah. As Buddhists make up 89% of Myanmar’s population, especially make up the majority of Burmans, Buddhist culture has been being preserved nearly intact. And most areas, excluding the metropolitan area, have been maintaining the features of agrarian society and traditional families. Myanmar’s family law system mingles with the common laws of respective tribes forming Myanmar society, the English Common Law and statutory law. During the colonization of Myanmar, Britons called ‘Dhammathats’ Burmese common law ‘Burmese Buddhist Law.’ Dhammathats are affected by Buddhist ethics but are not puritanical law, and instead, it can be defined as a moral standard covering Burmese Buddhists’ customs, culture, social norms and precedents. Nowadays it has hardly been valid, but its value is further increased in relation to civil affairs such as the division of inherited property, marriage, divorce and religious customs. As regards unstipulated problems, the court adopts equitable customs in interpreting them or holding such trials, whereby Dhammathats keep evolving. In particular, it is still useful for cases that are without precedent. Though Myanmar is a multi-cultural society composed of various tribes, yet Bermans have been central to social development and advancement. Hereat, this study looked into legal norms relevant to Bermans’ marriage, divorce and inheritance, on the authority of ‘Burmese Buddhist Law’, namely Dhammathats. The results showed that Bermans, the majority tribe of Myanmar, live their life in positive norms based on respect for humanity and positive view on afterlife that feature in Buddhist culture. Buddhism, respecting equality, affects Bermans’ family system. They have no family names, and the paternal line and maternal line are equal in their relations. Couple-centered nuclear families are basic to the family system. What is significant is that Myanmar operates the family law system that is more rational and advanced than Korea’s, at least in the adoption of foster sons or the division of property. At the same time, however, there are negative aspects, e.g., religious sexual discrimination grounded on religious values, legal recognition of bigamy in specific stratums, and sexual discrimination in divorce claims for marital infidelity. In addition, there is urgent need to clarify the regulations on marriage and divorce predicated upon de facto marriage and to make legal preparation for marriage with other tribes with the open society in mind. The author suggests Myanmar and Korea conduct a joint study on Myanmar’s customs related to the family system of the whole society including ethnic minorities, expecting to support Myanmar with Korea’s advanced law system and promote legal exchange between two countries. The enactment of Korea-Myanmar family law, based on the joint study, or custom laws is expected to help enact conflict law to solve legal problems among tribes, and moreover, the development of family registration system and the operational support are expected to open up a new chapter in legal exchange between two countries.

 

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