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Presentation of Opinions on Hoju System [2003] KRNHRC 29 (1 March 2003)

Under Article 28 1 of the National Human Rights Commission Act, which
reads ` the Commission may present its opinions on de jure matters to the......
competent division of the court of the Constitutional Court,' the Commission
decided to submit its opinion regarding the Korean Hoju [Family Registry]
System to the Constitutional Court, which is currently reviewing two cases
challenging the constitutionality of the system and applicable laws. While these
cases are pending at the Court, the Commission reviewed the family registry
system and concluded that the system is unconstitutional and a human rights
violation. Clause 1, Article 36 of the Korean Constitution stipulates that
`Marriage and family life are entered into and sustained on the basis of
individual dignity and equality of the sexes, and the State must do everything
in its power to achieve that goal.' However, the current provisions related to
the family registry system under Article 778 and 781(1) of the Civil Act are
problematic as follows:

The current provisions related to the family registry system under Article 778
and 781(1) of the Civil Act, which includes the domestic relations law (i.e.,
family law), prescribe that "A person who has succeeded to the family lineage
. shall become the head of a family. A child shall succeed his or her father's... ...
surname and origin of surname and shall have the name entered into his or her
father's family register "...

The Commission found that such provisions either make a whole family
subordinate to the head of the family or make women subordinate to men. In
addition, such a legal system prevents the formation of equal relationships
within a family by creating rank and hierarchy. Thus, it violates the individual
freedom to marry, in some cases, because the marriage certificate is not
recognized as legal if the head of family is either unlisted or both the man and
woman are listed as head of family. In addition, the provisions of the family
law violate the freedom of family formation because in case of divorce such
provisions prevent the children of the divorced couple from registering under
their mother's family registry. As a result, the rights of women (as mothers,
daughters, and wives) are violated because of traditional, outdated practices
emphasizing paternal lineage, which require children to take the father's name
and reserves the position of head of family for men.

Therefore, the Commission determined that the Hoju System imposes
hierarchical family relationships and prioritization of paternal lineage without
logical reason and thus violates the provisions of the Korean Constitution, which
assures human worth and dignity and guarantees the right to pursue happiness
and the right to equality of individuals as well as between genders in the
marriage relationship. The Commission submitted its opinion to the
Constitutional Court on March 10, 2003. The Constitutional Court is reviewing
the opinion.