Constitutionality Case against Law that Defines Children Should Follow Their Biological Father`s Surname

A district court referred a constitutionality case to the Constitutional Court against the civil law clause that prescribes children should follow real father`s surname even after their mothers are remarried, insisting that it violates the constitutional principle of gender equality.

Kwak Dong-hyo, the chief director of Northern branch of Seoul District Court said on the 16th, ＂A boy (14) and his sister are disadvantaged because they cannot change their surname even after their mother is remarried and they have their name entered in the stepfather`s family register. So I accepted their request for the constitutionality case and referred to the Constitutional Court.＂

According to him, Clause 1, Article 781 of the Civil Law that states “Children should follow their (own) father`s surname” may be unconstitutional because it collides with the constitutional principle of gender equality.

Mr. Kwak said, ＂When two persons are remarried, the husband`s children from his earlier marriage keep their father`s surname, but the wife`s children from her earlier marriage cannot use their stepfather`s surname, and are suffered from it. This is against the constitutional principle of equality.＂

He also said, ＂The principle of surname has its root on the patriarchal morals and this clause is against followings: Article 10 of Constitution which defines human dignity and worth and the right to pursue happiness; Clause 1, Article 36 of Constitution which defines that marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes; Clause 1, Article 11 of Constitution that defines that all citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status.＂

The father of the two children died in 1999 and their mother was remarried in 2001. They filed for a family register change to have their name entered in their stepfather`s family registry. As it was rejected, they filed a constitutionality case on January 29th.

Sun-Woo Kim sublime@donga.com