Case onSame-Surname-Same-Origin Marriage Ban

[9-2 KCCR 1, 95Hun-Ka6 et al., July 16, 1997]

A. Background of the Case

In this case, the Constitutional Court delivered a decision of nonconformity to the Constitution for Article 809 Section 1 of the Civil Act, which prohibited same-surname-same-origin marriage.

Article 809 Section 1 of the Civil Act prohibited marriage between two persons who are blood relatives, who share the same family name and come from the same ancestral line ("Dongsungdongbon" in Korean).

The ban on same-surname-same-origin marriage had been the subject of a long dispute between Confucian adherents who emphasize that it is part of the country’s tradition and women's groups who demand its revision or abolition on the grounds that it is not only too broad a prohibition on marriage without any genetic evidence, but also a relic of patriarchy and male supremacy. As an interim solution, the National Assembly, through the Act on Special Cases concerning Marriage, saved many same-surname-same-origin couples from hardships in the schooling of their children and their marriage lives by recognizing their de facto marital status. However, it failed to provide a fundamental solution and eventually, the provision was brought to the Constitutional Court for constitutional review.

The petitioners sought the nullification of the administrative action that rejected their marriage registrations on the grounds that they were same-surname-same-origin marriages in the Seoul Family Court and requested constitutional review of the provision, which was accepted.

B. Summary of the Decision

The Constitutional Court delivered a decision of nonconformity to the Constitution for Article 809 Section 1 of the Civil Act, which prohibited same-surname-same-origin marriage.

Even setting aside Article 809 Section 1 of the Civil Act, the scope of consanguineous marriage prohibited by other provisions is sufficiently broad. Yet Article 809 Section 1 not only voids all same-surname-same-origin marriages

regardless of the degree of kinship, but prohibits the registration of their marriage report.

Korean society has changed drastically from the period in which the ban on same-surname-same-origin marriage was tolerated, and the institutional foundation of the ban is being greatly questioned. First, modern society is a free democratic society that is based on the fundamental ideas of freedom and equality and opposes sexism and any form of caste or class. Accordingly, Article 36 Section 1 of the Constitution not only mandates that the establishment and maintenance of marriage and family life be based on gender equality and individual dignity but even provides for the state's responsibility to guarantee the fulfillment of this mandate. Secondly, the prevailing view of marriage changed from that of a union between two families to that of a union between two individuals whose free will should be respected. The prevailing idea and form of family also changed from that of an extended family based on patriarchy to that of a nuclear family. The idea of gender equality has also become widely accepted due to the expanding education of women since the founding of the country. Thirdly, the self-sustaining agrarian society or the feudal and isolated rural-centered society has transformed itself into a highly advanced industrial society. In line with the growth of the population, the numbers of those with major family names reached 3,892,342 for Kim from Gimhae, 2,379,537 for Lee from Jeonju, and 2,704,819 for Park from Miryang, according to 1985 figures, making surnames and origins difficult to accept as rational standards of a marriage ban. Further, the growing urbanization of the population is diluting such concept as a household or a lineal origin (bon-gwan).

Based on such an evaluation, Article 809 Section 1 of the Civil Act loses its social acceptability or rationality as a marriage ban and is in direct conflict with the principle of sexual self-determination, especially, the constitutional ideas and provision on human dignity and worth and the right to pursue happiness (Article 10 of the Constitution), which is the basis of the right to choose one's destiny including the freedom of marriage and freedom to choose one's partner in marriage. It also directly conflicts with the constitutional provision calling for establishment and maintenance of marriage and family life on the basis of individual dignity and gender equality (Article 36 of the Constitution). In addition, since the scope of prohibition is limited to the same surnames, in other words, those with the same patrilineal blood ties, it constitutes gender discrimination, thus violating the constitutional principle of equality (Article 11 of the Constitution).

Among the seven Justices who found it unconstitutional, Justices Chung Kyung-Sik and Koh Joong-Suk advocated for respect of the National Assembly’s

power of legislative formation. Therefore, the Court delivered a decision of nonconformity to the Constitution for the provision and prohibited its application, setting a deadline of December 31, 1998.

On this matter, Justices Lee Jae-Hwa and Cho Seung-Hyung provided a dissenting opinion by arguing that even if the above provision restricts the people's right to pursue happiness, in other words, the freedom of marriage and the freedom to choose with whom to marry, it does not violate the rule against excessive restriction. In addition, it does not constitute arbitrary gender discrimination because the Civil Act adopted the provision as a codification of a traditional custom.

C. Significance of the Decision and Aftermath of the Case

After the decision suspended the effect of the ban, the estimated two hundred thousand couples who had been forced to remain only inde factomarriages were now able to obtain legal marital status. The decision also provided a breakthrough for the attempts to revise other related family law statutes that were at a standstill.

Confucian adherents criticized the decision as "a shameful sell-out of the entire people, going beyond the sell-out of the nation," while women groups welcomed it as "a calm announcement but a thunderous impact that took down an evil practice in a time of change." (Chosun Daily, July 17, 1997)

Meanwhile, parts of the Rules of the Supreme Court on Family Register that prohibited the registration of same-surname-same-origin marriage (Rule No. 172) and that concerned the mistaken registration of same-surname-same-origin marriage (Rule No. 176) were abolished. On March 31, 2005, long after the deadline of December 31, 1998, provided by the Constitutional Court, the National Assembly revised Article 809 of the Civil Act by Act No. 7427 and deleted the ban on marriage between persons of the same surname and same family origin, instead establishing measures that prohibited consanguineous marriage between blood relatives within the eight degree of relationship.