Hoju system

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The Hoju system, traditional household system (호주제/戶主制), existed prior to the amendment to the Civil Act[1] in March 2005 by Act No. 7427. Under such system, a household had the house head at its core where only direct male descendants inherit the position to serve as successive household heads.

Beginning January 1 of 2008, Korea’s age-old patriarchal "Hoju" system was abolished in favor of a more gender-friendly policy. It was facilitated by the Constitutional Court decision that the "Hoju" system does not conform to the Constitution.[2]

Contents

Key words

household head, family register, Hoju system, Constitutional incompatibility, family relationship

Hoju system

Under the previous Civil Act prior to March 31, 2005 but still effective until the end of 2007, a Hoju was an individual who is the head or legal representative of a family. A male had priority over a female with regard to accession to the position of Hoju. A woman was listed in the family register (호적/戶籍) under her father (as Hoju) until marriage, whereupon she was placed under her husband (as Hoju). Children remained registered in their father's family even when their mother has custody of them after divorce.

Constitutional Court case

Background

Some married women applied to the family registration office to have the title of Hoju held by their husbands removed, and some divorced women applied to have their children re-registered under their own family. When their applications were refused by the family registration office, they filed a suit and argued that the provisions of the Civil Act regulating the Hoju system violated Article 10 of the Constitution (which recognises an individual's human dignity, human worth, and right to pursue happiness), Article 11 (1) (which prohibits gender discrimination) and Article 36 (1) (which guarantees the free pursuit of marriage and family life based on individual dignity and gender equality). Having accepted the petitioners' petition for constitutional review, the courts made a reference to the Constitutional Court for a constitutional review of the provisions in question.

Constitutional Court decision

The Constitutional Court held by a seven-to-two majority that the latter part of Article 781 (1) of the Civil Act[3] is not compatible with the Constitution because the Hoju system violates human dignity and gender equality. The provision in question remains effective until the amendment to the Civil Act in that sense.[4]

Reasoning

Although the family system reflects historical and social customs, it cannot prevail over the Constitution, the supreme norm of the state. Moreover, if family law is an obstacle to the realization of constitutional ideology and causes the departure of a constitutional norm from reality, family law must be reshaped to conform to the spirit of the Constitution.

By declaring that the equality of the sexes in marriage is the foundation of the constitutional marital system, the Constitution decided that the traditional patriarchal marital system could not be accepted any longer. The equality of the sexes and the dignity of the individual are considered as the supreme norms of the martial and family system in the current Constitution.

Traditional culture cannot prevail over the Constitution, the supreme norm of the state. This is especially true where traditional culture, without justifiable reasons, infringes the basic human rights guaranteed by the Constitution.

The Hoju system discriminates against women through sexual stereotypes. It also imposes disadvantages on women without justifiable reasons as to the priority of succession of the Hoju title, the formation of conjugal hierarchies and the legal status of children in the family.

The current Hoju system causes great inconvenience and pain to many families by preventing them from arranging their legal relationships in such a way that is appropriate for their real family life and family welfare. Traditional ideologies and established social morals and customs such as ancestor worship, respect-for-age and filial piety, and family harmony cannot be exploited to justify the constitutionality of the current Hoju system, since they can be fully preserved in cultural and ethical dimensions regardless of the existence of the Hoju system. Therefore, the obvious discrimination against women in the Hoju system cannot be tolerated in our constitutional system.

The Hoju system is a unilateral regulation and enforcement of a special family relationship, which originates in the deep-rooted idea of the maintenance and succession of a male-centred lineage, ignoring the will and welfare of individual family members. The system does not respect the individual as a person with dignity, but considers individuals as mere instruments for the maintenance and succession of the family. It is not compatible with Article 36 (1), which sets out that individual autonomy in marriage and family life should be respected.[5]

The current family relationship is a democratic one, in which every member of the family is considered as a person with dignity and should be treated equally. The types of families have become significantly diverse, including single mother-centred families with the mother's own children and remarried couple-centred families with children from their previous marriages. The ratio of women who lead the family as head has substantially increased with the improvement of women's economic power and an increase in the divorce rate. It could be said that the Hoju system is consistent with the traditional family system based on paternal bloodlines. However, there is no justification for the existence of the Hoju system if that system is not compatible with the new social atmosphere and diverse family relationship, and may result in the distortion of the reality of the family.

Dissenting opinion

By Justices Kim Young-il and Kwon Seong

The family law, which regulates marriage and family relations, inevitably reflects traditionalism and moralism; the interpretation of the constitutional provisions concerning marital and family relations needs careful consideration of the traditional aspects of family law. In particular, if traditional culture is assessed only in light of a unilateral factor such as mechanical equality, traditional family culture will be ignored and finally disappear.

The current Hoju system, as an institution for the composition and succession of the traditional paternal bloodline, is based on our tradition and the reality of the Korean society. The Hoju system does not infringe the principle of equality because it does not amount to substantial discrimination against women. Although the Hoju system seems to shape a social hierarchy in the family unilaterally, it is an inevitable outcome of the process of legislating family law. Family law also has additional mechanisms such as the voluntary formation of a branch family and the surrender of the right to be a Hoju successor. These mechanisms provide adequate means to reduce the burdens of the Hoju system so that the dignity of family members can be protected. Consequently, the Hoju system does not violate Article 36 (1) of the Constitution.

Implications of the Case

The Constitutional Court has made salient contributions with regard to gender equality in spite of the strong opposition of the senior male citizens based upon the patriarchal Confucianism.

The same was the case with the Supreme Court. In July 2005, the Supreme Court rendered an epoch-making decision on the validity of the former customary law (관습법/慣習法) which limited the qualification of clan members (종중 구성원/宗中構成員, 宗員) to adult males.[6] Contrary to the traditional thought based on the Confucianism, the Supreme Court affirmed all the descendants having the same family name and family origin become clan members upon coming of age without distinction of sex, but made it sure that its changed opinion as to the qualification of clan members would not apply retrospectively to other cases about the qualification of clan members raised before this judgment and other associated legal relations.

Accordingly the Family Register Act (호적법) was repealed and the Act on the Registration of Family Relationship (가족관계의 등록에 관한 법률) was established and came into force.

References

  1. The English text of the Act as of August 2009 is available here.
  2. The Constitutional Court Decision 2001Hun-Ka9, 10, 11, 12, 13, 14, 15 and 2004Hun-Ka5 (consolidated) decided on February 3, 2005.
  3. Article 781 (Surname and Origin of Surname of Child) of the Civil Act
    (1) A child shall succeed his or her father's surname and origin of surname and be registered with his or her father's family; Provided, that the child may succeed his or her mother's surname and origin of surname in case where his or her father is a foreigner, and shall be registered with his or her mother's family. (자는 부의 성과 본을 따르고 부가에 입적한다. 다만, 부가 외국인인 때에는 모의 성과 본을 따를 수 있고 모가에 입적한다.)
    Subject to the Amendment to the Civil Act on March 31, 2005
    (1) A child shall succeed his or her father s surname and origin of surname; Provided, 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.
    (2) Where the father is a foreigner, the child may succeed the mother's surname and origin of surname.
    (3)-(6) Omitted.
  4. See supra note 2.
  5. Article 36 (Marriage, Family, Mothers, Health) of the Constitution
    (1) Marriage and family life are entered into and sustained on the basis of individual dignity and equality of the sexes, and the State must do everything in its power to achieve that goal.
    (2) The State endeavors to protect mothers.
    (3) The health of all citizens is protected by the State.
  6. Supreme Court en banc Decision 2002Da1178 was decided on July 21, 2005.




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