호주제를 전제로 한 상속관습법의 폐지에 관한 입론

Abstract

The Family Headship system (Hojuje) is a system in which the conceptual collective body called a family is organized and maintained under the family head and the family head title is passed down through generations through the male lineal descendants. In other words, it can be said a legal tool in which the family is organized focusing on the male blood line and it is passed down continuously through generations. The ruling by Constitutional Court in 2005 stated that the system is not in compliance with the Korean Constitution. Accordingly, in Mar. 2005, the Civil Act was revised to remove all kinds of provisions related to the family headship system. Therefore, there is no provision related to the family headship system in current Civil Act. In this respect, it can be evaluated that “it was 2005 when all colonial traces in the laws were completely abolished.” It can be considered that the ruling by Constitutional Court in 2005 and the resulting revision of Civil Act abolished the family headship system in the Korean laws given the current laws under ‘implementation’. However, there is a totally different story from the perspective of ‘application’. For example, as the inheritance is based on the laws which are in effect when the inheritance starts, the law which is valid at the time of death of the inheritee is applicable as far as the inheritance is concerned. It means that if there is any inheritance concerned with the family headship system, the system can be still used as the ground for judgment.