Jesa, the Responsibility of the Eldest Son? Supreme Court Breaks Away from Precedent, Smashing Gender Discrimination

Precedent Put Priority on Eldest Son, Going Against Gender Equality, “There Is No Reason Why the Eldest Son Is More Legitimate.”

Chief Justice Kim Myeong-su and the justices of the Supreme Court are seated to announce an en banc decision at the Supreme Court in Seocho-gu, Seoul on May 11. Yonhap News

On May 11, the grand bench of the Supreme Court presented a new standard giving the oldest person next of kin priority to oversee jesa, a traditional rite for ancestors. The ruling came after the bench decided that existing precedent failed to break away from jesa customs deeply rooted in Confucian patriarchy. The court judged that the precedent, which put priority on the “eldest son,” could no longer be upheld after taking into consideration the changing times, in which the meaning of the family and jesa were all changing.

Instead, the Supreme Court presented a ruling that abolished discrimination and moved a step closer to gender equality. On Thursday, the Supreme Court announced, “If a certain family system goes against the dignity of an individual and against gender equality, it cannot argue for constitutional legitimacy,” and said, “Tradition is a concept representing history and the times and must be grasped in a contemporary meaning. It (existing precedent) does not fit the contemporary meaning of tradition.”

The Supreme Court decided that the 2008 en banc ruling, that “If the bereaved family cannot reach an agreement, so long as there are no special circumstances, the male heirs, such as the eldest son or his eldest son (grandson), will have priority as the presider of jesa,” did not agree with the idea of gender equality stipulated in the Constitution. For when determining the person to oversee the jesa, female heirs are pushed back in priority behind their male counterparts regardless of their wishes, because of their gender.

The Supreme Court also mentioned how the significance of jesa has changed and how the role of sons and daughters in remembering their ancestors and supporting their parents no longer show any difference. The bench said, “In connection with jesa, the male-centered succession of the family, a patrilineage, has weakened considerably, and honoring and remembering the deceased has become more important.” Given the changes in funeral proceedings and the simplification of jesa formalities and procedures, the court believed there was no reason to think that it was more right for the eldest son to preside over the jesa.

The Supreme Court further explained, “According to the trend of the decisions by the Supreme Court, which has sought harmony with the idea of gender equality in tradition and customs, we could no longer insist on the 2008 en banc ruling, which had not fully broken away from the principle that the jesa should be inherited by the eldest legitimate son.” They mentioned a ruling that acknowledged women as heirs of the family and explained how the Supreme Court had made decisions to tear down the patriarchal system without being bound to gender-discriminatory customs.

Seniority, the New Standard: Criticized as “Simply a Remnant of a Male-centered Succession of Family”
The Supreme Court presented “age” as the new standard to replace the existing precedent, claiming, “Giving priority to the older person among people with the same status and conditions agrees with the current legal order and the universal legal awareness of the general society.” The bench further explained how age was reflected in all areas of legal order, such as how the oldest person actually takes on the role of the chief mourner in a funeral and how the standard of seniority is applied when granting someone in the family any legal status.

Justices Min You-sook, Kim Seon-soo, Noh Jeong-hee, and Lee Heung-gu agreed to the latest ruling, but released a separate opinion arguing, “It is hard to agree with the decision that the oldest person next of kin should be given priority as the jesa overseer.” They argued that a separate decision should be made on the most suitable person to preside over the jesa after comprehensively considering the wishes of the deceased, the relationship that the deceased had with the bereaved family when he/she was alive in terms of who lived with the deceased, who supported him/her, the frequency of their visits and communication, etc. and the willingness and ability of the bereaved family to manage the body and remains.

These judges pointed out that the majority opinion could not escape criticism for following the standard of age in the name of achieving harmony with tradition, while changing the existing male-centered standard in determining the jesa presider on grounds that it did not agree with the constitutional principle of equality. They argued, “The perception that the person with seniority should be given priority is also simply a remnant of a male-centered succession of family,” and added, “Since it is difficult to conclude that the oldest of the lineal descendants has a stronger desire to cherish the memories of the deceased, we cannot say that he/she is more appropriate as the person overseeing the jesa.”

Regardless of Gender and Legitimacy... Then What about the Spouse?
In addition, the separate opinion also mentioned that excluding the spouse when determining the jesa presider was unfair. According to this opinion, a number of laws including the Industrial Accident Compensation Insurance Act and the Public Officials Pension Act put top priority on the spouse among bereaved family members when granting rights, and among nuclear families, the thought that the jesa should be handled by the next generation was also fading.

The judges said, “We can infer from experience that the surviving spouse will probably have the strongest wishes to remember the deceased based on the closeness of the relationship and the life shared with the deceased when he/she was alive.” They further argued, “Even if we don’t mention the traditional idea of filial piety, the children handling the body and remains of the deceased against the wishes of the surviving spouse does not agree with social norms.”

There was also a concurring opinion on the separate opinion. Judge Kim Seon-soo said that in the latest case, “The remains of the deceased were important not because of the volume, but because it had the symbolic meaning of a connection with the deceased,” and added his wishes for the plaintiff and defendant to smoothly resolve the issue by sharing the remains and cherishing the memories of the deceased.