The Constitutional Court said in its landmark decision on Feb. 3 that certain provisions in the Civil Code concerning the "hoju" system, a male-oriented family registry, were not consistent with constitutional law. Following this decision and under strong lobbying from nongovermental organizations in favor of gender equality, on March 2 the National Assembly passed a statute effectively abolishing hoju system provisions from Jan. 1, 2008. In the meantime, the government is exploring alternate ways to replace the family register, or hojeok.
The hoju system places the man as the legal head of the family. Hoju literally means "head of family." When a husband dies, he is usually succeeded by his first son, not by his widow. When a daughter gets married, she is removed from her father`s hojeok and transferred to her husband`s. Children are added to the father`s hojeok. Even when a couple divorces and the mother retains custody of children, the children keep the father`s surname and remain in his hojeok unless he gives permission to transfer.
The main criticism of the hoju system is that it is too male dominant, resulting in gender discrimination and cultivating bias in the roles of gender in everyday life. However, proponents of the hoju system, mainly strong conservatives and followers of Confucius, argue that the system is a symbolic means of maintaining the integrity of traditional family values that were instituted during the Koryo dynasty (918-1392) and flourished under the Joseon dynasty (1392-1910). They also point out that the system was improved in 1990 by removing Japanese colonial era elements and making it more balanced between traditional values and the modern ideals of the roles of men and women.
Regarding the legal arguments, the Constitutional Court ruled by a six-to-three majority that the hoju system is not a symbolic means for maintaining traditional family values by merely stipulating who leads the family and maintaining the family record in a orderly fashion, but rather it is a legal means of shaping a male-dominant family structure and perpetuating the structure from generation to generation. The opinion stated that under the current system the individual is not treated as a person having his or her own dignity, but rather an instrument serving the paramount value. As the Court stated that the current structure cannot be reconciled with the spirit and provisions of Korea`s constitutional law with respect to individual dignity and equality between genders in family matters.
One of the key issues of the case was how to interpret family traditional values, not just because the system was formed under the accumulated weight of centuries of tradition, but because constitutional law mandates that national traditions must be respected and developed. The majority opinion noted that traditions have historical characteristics that shall be passed on and also developed pursuant to the spirit of the times, especially contemporary ideals, and thus ruled that traditions should not be interpreted in a way contrary to the legal order expressed in the Constitution.
On the other hand, the dissenting justices observed that family law inevitably has carried traditional traits and conservative ethical aspects and were concerned that overriding assertions of equality may encourage the dissolution of families. In counterpoint, the majority opinion stated that Korean values such as respect for elders, filial piety and devotion to family unity can be maintained without institutionalizing the hoju system.
The Constitutional Court`s decision and persuasive opinion paved the way for the National Assembly, while confronting strong opposition groups, to pass the law abolishing the hoju system. This will be recorded as an epochal legal development from its strengthening of the supremacy of constitutional law, and will allow the "weaker" gender of this society to be treated with dignity, equality and respect.
Cho Chi-hyoung is a partner and an attorney-at-law at Hwang Mok Park P.C., one of Korea`s leading law firms. HMP provides effective legal solutions that allow its clients to adapt and thrive in Korea`s rapidly changing business environment. Tel: (02) 772-2700. Email: firstname.lastname@example.org - Ed.
By Cho Chi-hyoung