Use of Paternal Family Name Case

[17-2 KCCR 544, 2003Hun-Ga5․6(consolidated),

December 22, 2005]

In this case, the Court found unconstitutional the Civil Code provision requiring one to follow the paternal family name, for the reason that it infringes on individual dignity and sexual equality, and issued a decision of constitutional nonconformity allowing the

provision to remain valid pending its revision.

Background of the Case

Petitioners' father died and thereafter the mother remarried. The husband in the remarriage adopted the petitioners and, wishing to give them his family name, filed an application for change in the family registration system at the Seoul District Court. The petitioners then applied for constitutional review of the main text of Article 781 (1) of the Civil Code, and the presiding court referred for constitutional review the phrase "a child shall follow the family

name of the father" in the main text of Article 781 (1).

Summary of the Decision

The Court issued a decision of constitutional nonconformity with the majority opinion of seven Justices (two Justices with a concurring opinion and one Justice with an opinion of simple

unconstitutionality) for the following reasons:

1. Majority Opinion of Five Justices

Requiring one to follow his or her father's family name in selecting his or her family name does not exceed the scope of legislative formation. However, when the child was born after the father's death or the parents' divorce and is therefore expected to be raised solely by the mother, or when the mother alone is rearing a child born of extramarital origins, such unilateral requirement to follow the father's family name and disallow use of the mother's

name violates individual dignity and sexual equality.

In adoption, remarriage, and other changes in or new creation of family relations, depending on concrete circumstances, changing one's family name to his or her adopting father's or step-father's becomes closely related to his or her personality-interests. Forcing one to use only his original father's family name and not allowing a name change infringes on the individual's right to personality.

The unconstitutionality of the instant provision does not arise out of the fact that it selects the father's family name in the first place, but that it does not allow exceptions where use of the father's family name may be unfair. Therefore, we issue a decision of constitutional nonconformity and allow the provision to remain valid temporarily pending the effective date of the new law that has

revised the provision.

2. Concurring Opinion of Two Justices

The instant provision requires all individuals to follow the fathers' family names and not allow use of the mothers' family names, and thereby treats men and women discriminately. There is no legitimate legislative purpose for such discrimination. The provision violates Article 36 (1) of the Constitution prescribing

sexual equality in marriage and family life.

Especially, the instant provision completely disregards one's and his or her family's concrete circumstances and wishes concerning how to determine his or her family name and unilaterally imposes the State's requirement to use the father's family name, and we cannot find any concrete interest justifying the compulsory use of the paternal family name. The provision also violates individual dignity in marriage and family life guaranteed by Article 36 (1) of

the Constitution.

3. Dissenting Opinion of One Justice

Paternal family names are used because, while one's blood relation to the mother can be visually ascertained through the facts of delivery and breast-feeding, his or her blood relation to the father is by nature unascertainable. Paternal family names give public notice of the blood relationship to the father, and thereby strengthen the unity and solidarity between the father and children and protect the sustenance and integrity of the family. Family names are merely systems of signs, which do not affect women's substantive legal statuses or relations. One may suffer inconvenience from use of the paternal family name in cases of remarriage or adoption. However, such inconvenience is caused by society's prejudice and bigotry, not by the rule requiring use of the paternal family name. We should not follow abstract standards of liberty and equality to deny what is the way of life and the cultural phenomenon that has remained effective and the value of which has been recognized in this society. It is too early to deny the

constitutionality of the paternal family name rule.