傳統的 家族制度와 憲法― 최근의 憲法裁判所 判例를 중심으로 ―

Abstract

In February 3, 2005, the Korean Constitutional Court held that the Constitutional Court of the Republic of Korea declared the hoju(meaning "Master of the Family") system, which conferred privileges upon each family's respective hoju, incompatible with the Constitution. And in December 22, 2005, the Court held that the former provision of the Korean Civil Code of the paternal surname principle, that is, the child should use the surname of the father, was incompatible with the Constitution. In these 2 decisions, the main point of controversy was whether the tradition can be a ground of a rule's constitutionality. The dissenting opinions of the said decisions tried to support the hoju system and the paternal surname principle on the ground that these were deeply rooted elements of Korean culture. In my opinion, tradition in and of itself does not bestow constitutionality on an otherwise unconstitutional law. But the majority opinions of the 2 decisions were not fully satisfactory in this respect. Especially, the December 22, 2005 decision took the tradition into account in fact by maintaining that the paternal surname principle was not unconstitutional by itself. But this attitude toward the tradition is inconsistent with the Court's own precedents.