전통적 가족제도와 헌법 -최근의 헌법재판소 판례를 중심으로-
Traditional Institutions of Family Law and the Constitution

DC Field Value Language
dc.identifier.citation법학, Vol.47 No.2, pp. 149-188-
dc.description.abstractIn 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.
dc.description.sponsorship이 논문은 서울대학교 법학발전 재단 출연 법학연구소 기금의 2006학년도 학술연구비

의 지원을 받았음.
dc.publisher서울대학교 법학연구소-
dc.subjectMaster of the Family System-
dc.subjectIncompatibility decisions-
dc.subjectPaternal Surname principle-
dc.subjectConstitution, Tradition-
dc.title전통적 가족제도와 헌법 -최근의 헌법재판소 판례를 중심으로--
dc.title.alternativeTraditional Institutions of Family Law and the Constitution-
dc.typeSNU Journal-
dc.contributor.AlternativeAuthorYune, Jin Su-
Appears in Collections:
College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 47, Number 1/4 (2006)
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