Case on the House Head System

[17-1 KCCR 1, 2001Hun-Ga9․10․11․12․13․14․15

and 2004Hun-Ga5(consolidated), February 3, 2005]

In the instant case, the Court ruled that the relevant provisions of the Civil Code constituting the backbone of the house head system, under which a household, a concept of a collective, is formed around the house head at its core and passes down only through direct male descendants serving as successive house heads,

are non-conforming with the Constitution.

Background of the Case

One category of petitioners is people who had married but divorced and established new families. Despite the fact that they held custody 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 respectively are the house heads. These petitioners reported to the family registration office to register their children under their own households, but the

family registration office refused.

Another category of petitioners is people who are married and registered under the same households as their husbands or wives. In these households, petitioners who are husbands or the husbands of petitioners are the house heads. Petitioners in this category filed a change of house head so that these families will be registered as households without house heads. However, the family registration

office did not accept the filing.

Petitioners in both categories appealed the disposition of the family registration office to court. During the pending suit, the petitioners requested constitutional review asserting that the provisions of the Civil Code regarding the house head system are unconstitutional and the presiding court accepted the request and

referred the case to the Constitutional Court.

Summary of the Decision

The Constitutional Court issued a decision of constitutional nonconformity with a six-to-three-vote (one opinion concurring in the dissenting opinion). The summary of the reasoning is as

follows.

1. Majority Opinion of Six Justices

A. (1) 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 actualizing the constitutional ideal and only strengthens the gap between a constitutional norm and the reality,

such law should be amended.

(2) Our Constitution expressed its constitutional resolution to no longer tolerate the patriarchal and feudal order of marriage, that came from our past society, by declaring equality of men and women in marriage as the basis of the constitutional marital order. In the current Constitution, sexual equality and individual dignity are firmly seated as the supreme value regarding marriage and the

family system.

Meanwhile, "traditions" and "cultural heritage," respectively stated in the preamble and Article 9 of the Constitution, are concepts reflecting both their history and the times in which they are used. Thus, these concepts need to be defined according to their contemporary meanings considering the constitutional value order, the common values of mankind, justice, humanity, etc. Perceiving the meaning of the concept in such a manner, we understand that a certain limit - that 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, coming from the past, is contrary to the individual dignity and sexual equality required by Article 36(1) of the Constitution, it cannot be justified on the basis

of Article 9.

B. (1) The house head system, which forms the basis and framework of the provisions on review - 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."), latter part of the main paragraph of Article 781(1) ("entered into his or her father's family register"), and the main paragraph of Article 826(3) ("The wife shall have her name entered in her husband's family register.") of the Civil Code -, is a system whereby "a household, a concept of a collective, is formed around the house head at its core and passes down only through direct male descendants serving as successive house heads." In other words, the house head system is a statutory device to form a family with male lineage at the center and perpetuate it to successive generations. It is not a system that simply identifies the representative of a family called house heads and compiles the

family register accordingly.

(2) The house head system is discrimination based onstereotypes concerning sexual roles. This system, without justifiablegrounds, discriminates men and women in determining the succession order to house head, forming marital relations, and forming relations with children. Due to this system, many families are suffering inconvenience and pain in many ways since they cannot form a legal family

relationship appropriate to family life in reality and the welfare of the family. 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 house head system.

(3) The house head system one-sidedly prescribes and demands a certain family system deeply rooted in the ideal of maintaining and expanding a family centered on male lineage regardless of the intention or welfare of the people concerned. It does not respect individuals inside a family as individuals with dignity but rather treats them as a means to succeeding a family. Such attitude does not comply with Article 36(1) of the Constitution that demands respect for the right of autonomous decisions of individuals and families in deciding how to manage marriage and family life.

(4) The relationship inside a family, these days, is no longer an authoritarian one, in which a family is divided into a house head and the followers who obey the house head. It is changing into a democratic relationship where all family members are equally respected as individuals with dignity regardless of sex. As the society is becoming specialized the form of families have become very diverse including families with single mothers, remarried couples and their children from the previous marriage, etc. Also, due to the increased economic power of women and the increased number of divorces, the rate of women filling the role of a house head is also on the rise. Even if the house head system is related to the past family system based on the principle of lineage, as can be seen above, the foundation of the principle's existence has now collapsed and the system no longer can be harmonized with the changed social environment and family relations. Therefore, there is

no need for the house head system to be retained.

C. If the provisions on review, the framework of the house head system, are found unconstitutional, the system cannot be retained. As a result, the current Family Register Act, which prescribes that each family in the Family Register be compiled according to each house head, cannot be enforced the way it is. However, if the Family Register Act is not enforced at all, there will be a vacuum in the public records used for notice and verifying the relations among people. Therefore, we pronounce a decision of constitutional nonconformity in order to temporarily enforce the provisions on review until the Family Register Act is amended with a new family register system not premised on the house head system.

2. Dissenting Opinion of Two Justices

The house head system of the current law succeeded our own rational tradition of the principle of paternal lineage that had started from the ancient times traceable to the middle period of the Chosun Dynasty. The system can be said to have rid itself of the vestiges of Japanese imperialism and has returned as truly our own tradition. 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. Especially, in the realm of family law, we should not imprudently cut up our traditional culture with a mechanistic rule of equality - rejecting and dismantling totally the traditional family culture. The house head system, in the current law, is designed to actualize the constitution of family and succession of family system based on the principle of paternal lineage. The principle that the wife and children are registered as annexed to the husband, and the system of house head succession, have been designed for such purpose, and are based on our society's long tradition. Also, as they cannot be seen as substantial discrimination against women, they do not violate the principle of equality. Even if the house head system has an aspect of one-sidedly forming status relations, this is

inevitable in the process of enacting the family system. Moreover, systems alleviating such one-sidedness, such as voluntary branching of family, waiver of the right to succeed the house head, etc., are available. Therefore, as it is also difficult to see that the house head system of the current law does not respect individual dignity, the system does not violate Article 36(1) of the Constitution.

3. Concurring Opinion of One Justice to the

DissentingOpinion (2.) Above

The principle of children's annexed registration, prescribed in the latter part of the main paragraph of Article 781(1), itself is not unconstitutional. However, as the established exceptions to the principle are too narrowly limited, it is, as the majority opinion points out, inappropriate in reality, irrational in limiting the intention of the children, and discriminatory to the mother in substance. Therefore, the latter part of the main paragraph of Article 781(1) cannot be said to be constitutional. As a result, Article 778 and the main paragraph of Article 826(3) are not unconstitutional, but the latter part of the main paragraph of Article 781(1) is

unconstitutional.

4. Dissenting Opinion of One Justice

The Civil Code prescribes a household system in order to contribute to the forming and maintenance of the family system, which is one of the institutions guaranteed by Article 36(1) of the Constitution. The reason for having a house head in each family is based on our traditional culture. Therefore, Article 778 of the Civil Code cannot be said to violate the Constitution, including Article 36(1), for acknowledging the concept of a household and introducing the idea of a house head into such concept. The sexually discriminatory element of the house head system can be ameliorated through 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, I am with the majority that the latter part of the main paragraph of Article 781(1) and the main paragraph of Article 826(3) are unconstitutional, but do not agree on the point that Article 778 is unconstitutional as it is a legislative measure within the realm of

legislative discretion to guarantee family system.

Aftermath of the Case

Article 778, the latter part of the main paragraph of Article 781(1) and the main paragraph of Article 826(3), which was declared nonconforming to the constitution have been repealed in the amendment of the Civil Code on March 31, 2005. Amended

provisions will be enforced from January 1, 2008.