"Time to Put an End to the Old Family System" The Civil Act Putting Priority on Paternity Infringes the Right to Gender Equality

[경향신문]

The couple, Yi Seol-a and Jang Dong-hyeon, announces that they will file a constitutional appeal on a Civil Act article, which states that a child should succeed the surname of the father, in front of the Constitutional Court in Jongno-gu, Seoul on March 18. Courtesy of Yi Seol-a and Jang Dong-hyeon

“The time has come to put an end to an outdated family system. Today, our couple is filing a constitutional appeal against the priority on paternity to drive a crack in the framework of a normal family, which has troubled countless minorities.”

These were the words by the couple Yi Seol-a (27, activist) and Jang Dong-hyeon (30, worker), who submitted a constitutional appeal claiming that an article in the Civil Act, which stipulates that a child must succeed the father’s surname, did not conform to the Constitution. The couple held a press conference in front of the Constitutional Court in Jongno-gu, Seoul on March 18 and announced that they requested a judgment by the Constitutional Court arguing that Clause 1 of Article 781 of the Civil Act, which states that a child shall succeed the father’s surname, violates the basic right on marriage and family life stipulated in Clause 1 of Article 36 of the Constitution.

The Civil Act article in question stipulates, “A child shall succeed his or her father’s surname and origin of surname.” However, it also mentions an exception, “That when the parents agree to have the child assume his or her mother’s surname and origin of surname at the time of filing a report on their marriage, he or she shall succeed the mother’s surname and origin of surname.” This was added when the Civil Act was amended in 2005, after the Constitutional Court decided that the article did not comply with the Constitution that same year.

Yi and Jang said they filed the constitutional appeal because the law, which in principle had the child succeed the father’s surname and only succeed the mother’s surname when there was an agreement, violated their basic right. According to the Constitution, “Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal.” But the couple argued that the article in the Civil Act violated the right to gender equality guaranteed by the Constitution.

The couple decided to file the appeal because they found that the process to have a child succeed the mother’s surname was complicated when they filed a report on their marriage. The couple had decided to have their child succeed the surname of the mother, Yi, even before they filed their marriage report. Last December, the two went to the gu office to report their marriage, and in the document they filled out, they checked a box stating that they wanted to have the child succeed the surname of the mother. The civil servant at the gu office then told them to submit a separate agreement stating that the two agreed to have all the children between them succeed the mother’s surname and origin of surname.

Yi told the reporter over the phone, “We went to report our marriage thinking we could freely choose whether to have our child succeed the surname of the mother or the father, but that wasn’t it. We thought that the process of preparing a separate agreement to have the child succeed the mother’s surname was unfair.” She further argued, “We can’t accept the request for a process that is only required when we want the child to succeed the mother’s surname.” She also said, “This is gender discrimination, for the state prevents people from having the child succeed the mother’s surname, if they don’t take separate actions and actively prove that there was an agreement.”

This is the first constitutional appeal on Clause 1 of Article 781 of the Civil Act, which was amended after the Constitutional Court decided that the hoju system (previous family registry system) did not conform to the Constitution in 2005. Eyes are on the Constitutional Court to see if they will reflect the reality, which has changed in the past 16 years, and decide for change. Last May, a committee reviewing legislative improvements for a more inclusive family culture under the justice ministry advised the government to abolish the priority on paternity. In the National Assembly, Democratic Party of Korea lawmaker Jung Choun-sook also motioned an amendment of the Civil Act abolishing priority on paternity.