전통적 가족제도와 헌법 -최근의 헌법재판소 판례를 중심으로-

Abstract

In February 3, 2005, the Korean Constitutional Court held that the

Constitutional Court of the Republic of Korea declared the hoju(meaning "Master

of the Family") system, which conferred privileges upon each family's respective

hoju, incompatible with the Constitution. And in December 22, 2005, the Court

held that the former provision of the Korean Civil Code of the paternal surname

principle, that is, the child should use the surname of the father, was

incompatible with the Constitution.

In these 2 decisions, the main point of controversy was whether the tradition

can be a ground of a rule's constitutionality. The dissenting opinions of the said

decisions tried to support the hoju system and the paternal surname principle on

the ground that these were deeply rooted elements of Korean culture.

In my opinion, tradition in and of itself does not bestow constitutionality on

an otherwise unconstitutional law. But the majority opinions of the 2 decisions

were not fully satisfactory in this respect. Especially, the December 22, 2005

decision took the tradition into account in fact by maintaining that the paternal

surname principle was not unconstitutional by itself. But this attitude toward the

tradition is inconsistent with the Court's own precedents.