A. Background of the Case
In this case, the Court ruled that the relevant provisions of the Civil Act constituting the backbone of the family headship (“hoju”) system, under which a household, a concept of a collective, is formed around the family head at its core and passes down only through direct male descendants serving as successive family heads, do not conform to the Constitution.
Some petitioners were people who had married but divorced and established new families. Despite the fact that they held custody of and raised their children, to whom they gave birth with their respective ex-husbands, the children were registered under the households in which the ex-husbands were the family heads. These petitioners reported to the family registration office to register their children under their own households, but the family registration office refused.
The other petitioners were people married and registered under the same households as their husbands or wives, in which the husband was the family head. These petitioners filed for a change of family head, to register their families as households without family heads. However, the family registration office rejected the filing.
Both parties of petitioners appealed the disposition of the family registration office. While the suit was pending, the petitioners requested constitutional review asserting that the provisions of the Civil Act regarding the family headship system are unconstitutional, and the presiding court accepted the request and requested constitutional review of this case.
B. Summary of the Decision
The Constitutional Court issued a decision of nonconformity to the Constitution regarding the family headship provisions, for the following reasons.
The Constitution is the supreme norm of the state. Therefore, even though the family system is distinctively an outcome of history and society, it cannot deviate from the superior force of the Constitution. In other words, if a law regulating the family system impairs the realization of the constitutional ideal, and only strengthens the gap between a constitutional norm and reality, such law should be amended.
Our Constitution expressed its constitutional resolution to no longer tolerate the patriarchal and feudal order of marriage handed down from the past, by declaring the equality of men and women in marriage as the basis of the constitutional marital order. In the current Constitution, gender equality and individual dignity are firmly seated as the supreme values in marriage and the family system.
We understand that a certain limit - that the tradition and cultural heritage of the family system should at least not be contrary to the constitutional ideals of individual dignity and sexual equality - exists. Therefore, if a certain family system from the past is contrary to the individual dignity and gender equality required by Article 36 Section 1 of the Constitution, it cannot be justified on the basis of Article 9.
The family headship system, which forms the basis of Article 778 ("A person who has succeeded to the family lineage or has set up a branch family, or who has established a new family or has restored a family for any other reason, shall become the head of a family."), the latter part of the main text of Article 781 Section 1 ("entered into his or her father's family register"), and the main text of Article 826 Section 3 ("The wife shall have her name entered in her husband's family register.") of the Civil Act, is a system whereby "a household, a concept of a collective, is formed around the family head at its core and passes down only through direct male descendants serving as successive family heads." In other words, the family head system is a statutory device that forms families with male lineage at the center and perpetuates this to successive generations. It is not a system that simply identifies the representative of a family as a family head (“hoju”) and compiles the family register accordingly.
The family headship system is discrimination based on stereotypes concerning sexual roles. This system, without justifiable grounds, discriminates men and women in determining the succession order to the family head, forming marital relations, and forming relations with children. Due to this system, many families are suffering inconvenience and pain, being unable to form a legal family relationship aligned with reality and the family’s welfare. Traditional ideology or public morals such as ancestor worship, respect for the aged and obedience to parents, and harmony in family can be passed down and developed through cultural and ethical aspects, but cannot justify the blatant sexual discrimination of the family headship system.
Today, relationships inside a family are no longer authoritarian, with the family divided into a family head and those who obey the head. Rather, families consist of democratic relationships were all family members are equally respected as individuals with dignity, regardless of sex. Families now take on diverse forms, including families with single mothers, and remarried couples living with children from previous marriages, among others. Also, due to the growing economic power of women as well as the number of divorces, more and more women are serving as the breadwinner of the family. The foundation of the existence of the family headship system has collapsed along with social development, as seen above, and thus can no longer be maintained as a family system. If the provisions of the Civil Act that form the framework of the family headship system are found to be unconstitutional, the system cannot be retained. As a result, a vacuum will occur in public records used for notifying and verifying relations among people. Therefore, we pronounce a decision of nonconformity to the Constitution in order to temporarily enforce the aforementioned provisions until the Family Register Act is amended with a new family register system.
Justices Kim Young-Il and Kwon Seong dissented, stating that family law, regulating marriage and family relations, can have strong traditional, conservative, and ethical features. Therefore, in interpreting the constitutional provision on marriage and family relations, the nature of the family law as a tradition should be considered. In particular, in the realm of family law, we should not carelessly judge our traditional culture with a mechanistic rule of equality, consequently rejecting and dismantling the traditional family culture. The family headship system currently in force is designed to actualize the constitution of family and succession of the family system based on the principle of paternal lineage. The system is based on the long-established tradition and reality of the Korean society, and cannot be seen as substantial discrimination against women. Even if the family headship system in some aspect forms status relations one-sidedly, this was inevitable in the process of enacting the family system. Moreover, there are measures that alleviate such aspect, such as the voluntary branching of a family or the waiver of the right to succeed the family head. Therefore, it is also difficult to say that the family headship system does not respect individual dignity.
While Justice Kim Young-Il was of the dissenting opinion above, he provided the concurring opinion that regarding the latter part of the main text of Article 781 Section 1 of the Civil Act, while the principle itself did not violate the Constitution, the exceptions to the principle were too narrowly limited, constituting substantial discrimination against the mother. Thus, it violated an individual’s dignity and the principle of equality.
Justice Kim Hyo-Jong partially dissented, as follows. The Civil Act prescribes a household system in order to contribute to the forming and maintaining the family system, as prescribed in Article 36 Section 1 of the Constitution. The reason for having a family head is based on our traditional culture. Therefore, Article 778 of the Civil Act cannot be said to violate the Constitution, including Article 36 Section 1, for acknowledging the concept of a household and introducing the idea of a family head into such concept. The element of gender discrimination of the family headship system can be ameliorated by voiding individual articles such as Article 984 or through legislative amendment. Therefore, such unconstitutional element cannot be said to be a problem essentially innate in Article 778, which is the basic provision constituting the household system. Therefore, Article 778 of the Civil Act does not violate the Constitution.
C. Aftermath of the Case
Article 778, the latter part of the main text of Article 781 Section 1 and the main text of Article 826 Section 3 of the Civil Act, which were declared as nonconforming to the Constitution, as well as those provisions of the same Act which were sexually discriminating based on the family headship system, were repealed in the amendment of the Civil Act by Act No. 7427 on March 31, 2005. The amended provisions were enforced from January 1, 2008.