The Korea Herald


[LAW TALK]From the rule of tradition to the rule of law: women`s lives


Published : April 6, 2010 - 12:44

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Spending the "Chuseok" holiday in their home town or village, Korean women may have had a different experience this year than before. Customarily, during the traditional holiday Koreans have a family reunion at the eldest son`s house and carry out the "charye" ritual, a Confucian-style ceremony that honors ancestors, and visit their ancestors` tombs in memoriam.
This year, however, has seen three historic legal changes: 1) a landmark decision by the Constitutional Court declaring the "hoju" system, the male-dominated family registry system, not consistent with constitutional law in February; 2) a long-awaited law passed by the National Assembly in March abolishing the hoju system and the "hojeok," the male-centered family register, through a revision to the Civil Code; and 3) a milestone decision by the Supreme Court in July declaring that married females have equal membership and property rights associated with their father`s "chongjoong," the patriarchic clan. Surely the year 2005 shall be recorded as the year for gender equality.
In comparison to the other two, the Supreme Court`s decision has a clear and present impact on the daily lives of Korean women, since changing the hoju and hojeok system is a family concept and won`t be effective until 2008. Granting chongjoong membership is deeply connected to property interests in the clan`s assets and the court`s decision arose from a dispute on the distribution of a clan`s assets.
Chongjoong, previously recognized as being formed by male descendants, historically could own a lot of property, including ancestral tomb sites and neighboring crop fields, to financially support rituals conducted during the Lunar New Year, Chuseok and other designated days in memory of common lineal ancestors. Sometimes the land would provide for the welfare of the clan`s members, which previously meant only males. Recent disputes have arisen over the fact that portions of chongjoong land were sold and proceeds distributed among the members, but not (or very little) to married female descendants of the same last name, as females were regarded as having moved from the clan to their husband`s family once married.
The traditional concept of the status of married female was maintained for a long time, even after the Constitution and the Civil Code were revised to mandate gender equality regarding inheritance, marriage, child custody and other rights. Even court precedents contributed to maintaining the concept by ruling that chongjoong are naturally formed traditional organizations serving the extended family as an institution. It was declared as customary law holding to tradition, the concept of which appeared very unyielding.
In the July decision, the Supreme Court split seven justices to six in overruling its previous ruling. The court held that the customary law had to be changed to the extent it was inconsistent with the provisions and spirit of the nation`s highest law, the Constitutional Law, and several Civil Code amendments. The outer shell keeping the tradition alive was suddenly removed.
Now women`s lives are no longer ruled by tradition but by the law. Currently, there is a debate over whether women should be required to serve in the military, thereby removing "protection" from the traditional concept of gender roles. Women, while doing many chores during Chuseok for the family, may have contemplated their new status under the law.

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 may be contacted at or (02)772-2700. - Ed.

By Cho Chi-hyoung