S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 47, Number 1/4 (2006)
전통적 가족제도와 헌법 -최근의 헌법재판소 판례를 중심으로-
Traditional Institutions of Family Law and the Constitution
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.47 No.2, pp. 149-188
- 부성주의; 호주제; Master of the Family System; Incompatibility decisions; Paternal Surname principle; Constitution, Tradition
- 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.