著者

鄭 相鉉

出版者

関西法政治学研究会

雑誌

憲法論叢 (ISSN:24330795)

巻号頁・発行日

vol.13, pp.39-56, 2006-12-26 (Released:2018-01-10)

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In Korean Civil Law, "Family" ("GA" in Korea) is formed with the Householder and its family members. The "Householder" ("Hoju" in Korea) is a head of a family, as the central figure of it. The "Householder System" in Korea is a unique legal system that grants many rights and dignities over family members to householder and compiles a register with the householder as the central figure the status of family members for a public announcement. These Householder System has been recognized since the enforcement of the Korean Civil Code in January 1st 1960. However, it has been criticized by many scholars, for the unconstitutionality of itself. Namely, most of people indicate, inter alia, that it had been made on the basis of Korean traditional customs with male or father as the central figure in family; but a great number of people note that it is against the constitutional ideology, the dignity and value of human, the right to pursue the happiness, equalities of both sexes, etc. Even at the time of the legislation of the Korean Civil Law, there were many arguments whether it prescribed the Householder System or not. In addition, whenever the revision of Korean Civil Law was discussed, a question on the maintenance or abolition of that system was always raised. In spite of those criticism and several attempts of revision, the regulations affecting the Householder System have not been changed for thirty years. However, the Householder System of the Korean Civil Law, especially Family Law was largely changed by the 7th revision in January 13th 1990. That is to say, many rights of householder were mostly eliminated except formal and symbolic things. But even after then, there were still arguments on the abolition of that system. Furthermore, in February 3rd 2005, the Constitutional Court of Korea upheld that the Householder System is against the Korean Constitutional Law. In the mean time, the revised bills of the Korean Civil Law were proposed by the National Assembly and the Ministry of Justice, the final modified bill was conformed in March 2nd 2005 and will be enforced from January 1st 2008. Through the incessant arguments and the decision of the Constitutional Court concerned with the Householder System, and its complete abolition, the Korean Civil Law has experienced very important change. In view of these facts, the Family of Korea can be rearranged equally without distinction between male and female, father and mother, husband and wife, senior and elder, etc. And these results are the fruits that the Koreans endeavored with blooded-and-tears to comply with the democratic ideology of the Korean Constitutional Law. However, it is necessary to consider the conventional interpretations on the family law. Because the Householder System, mixed with the thoughts that male or husband is the central figure of family, is firmly rooted in Korean society, and the Korean family law itself is grounded on traditional and customary, ethic and conservative characters of Korean society. Furthermore, law feelings or consciousness is considered with regards that the family law system reflects social norms corresponded with contemporary people. Thus, we must pay attention to the fact that many Korean people still put a high value on the Householder System as a frame to bind affirmatively family relations.