韓國家族法의 變遷과 展望에 관한 硏究 : 家族法上의 女性의 地位를 中心으로 The Point of the Status of Women in the Family Law = A Study on the Historical Changes and Prpspect in the Family Law.

다국어 초록 (Multilingual Abstract)

In this article, I tried to trace the gradual changes in Korean family law and prospect from the ancient phase of Korean history to the present era of the civil code. Torender the historical process of changes in a Comparative description, I went for back to the time of Ancient Kingdoms (Puyo, Koguryo and Silla) and the subsequent Koryo .and Chosun Wangcho dynasties. The period of Japanese rule and American occupation which led to Korean independence in 1945 was also included in the study, this the period covered in the criticle could be identified by four chronological stage; (1) The time of ancient kingdom and Koryo dynasty. The Chosun Wangcho dynasty (yi dynasty) (3) The period of old code and (4) The present days of current code. In this .article dealt to the present days of current code, amendment of the family law and the womens movement, The special measure law governing marriages is ail unusual legislative measure aimed at legalizing already established marriages and recognizing the children of couples with. the same family surnames and conclusion.
Chapter 1. The Japanese colonial government which took over Korea in 1910 enacted a Korea Civil Law Decree in 1913 in order to govern the civil relations among the Korean People. The decree stipulates in its article 1 : that $quot;the kinship and inheriteme among the Korean people shall be determine by custom but not in accordance with the law (Japan's civil code) as is set forth under Article 1.$quot; Thus matters related to per sonal status were explicitly separated from those related to property, and handled in accordance with old Korean customs and not by Japanese civil code. Compared with Chosun Wangcho dynasty, there was little change about personal status during the initial period of the Japanese colonial rule. However, the Japanese colonial rules later found the Korean old customary law unfit and unworkable in governing the Korean family life due to the civilization of the Korean people. This prompted the Japanese ruler to revise Article 11 of the civil code decree during the 1925-19?6 period to provide for the application of the Japanese Civil Code in dealing with divorce under courttrial or under consultation. This allowed women to file suit for divorce, while a marriage reporting system was alloped as a legal device to uphold monogamy, and.. thus to boost the status of women.
However, there was no change in male dominance in economic affair, since the incompetence of wives, and the right of husbands to manage the exclusive property of their wives were recognized, while women were denied the inheritance of property when the fathers remained family chiefs. In substances, mean-while, the Legal status of women were tangibly boosted, since concubines were not officially recognized as dual marriage was banned after a wife had been registered on family register, and wives were allowed to file suit for divorce in defiance with any maltreatment and harassment from their husbands. However, while monogamy was supported in legal terms, the existence of concubines was made unavaidable, since infidelity on the part of wives constituted reason for divorce or adultery, but the infidelity involving husbands did not constitute the reason for adultery. Meanwhile, the liberation of the cuntry from the Japanese colonial rule in 1945 paved the way for flourishing of democracy gradully eclipsing the confucian teaching and opening the way for an active participation by women, eventually laying solid ground for the equality between man and. women. Apparently in keeping abreast with the changing trend of the time, the. supreme court ruled that $quot;the clause concerning the incompetence, of wives$quot; in article 14 of the civil code was mill.
The supreme court action was widely hailed as an occasion giving women emancipation from incompetence clause.
Korea promulgated draft civil code in 195$, a year equivalent to the fourth phase, when the draft civil code was announced, the law governing the personal status caused pros and cons, although there was little controversy about the law governing property. In general, The Draft Civil Code formulated by the ordinance compilation committee, and the law concerning personal status which was passed by the National. Assembly were concervative in nature.
The Draft Civil Code was conservative, while The Civil Code was confirmed as such. because the law makers were mostly oldsters. Even so, The Korean Civil Code is a.. sort of compromise act designed to reduce undemocratic elements in family life by weakening the rights of family head, parental authority and the right of hundands which had been impeding the promotion of individual freedom and individuality while maintaining as a basic frame the principle part: of the Korean old customs and religious, practice. It also reflected the effort to revise various feudalistic regulations under the old laws by upholding human dignity and the principle of equality between man and. woman. In other words, The Civil Code allowed every family member to pursue independent life in legal terms, and abolished the system of treating wives as incompetent,. this recognizing the wives as a full competent beings.
chapter 2. Problem of The current Civil Code and amendment of the family law.
[1] Domestic relation of law.
1), 2) Female family headship, and adoptive husband systems, and the status of women.
The female headship system has been established as a comparatively lasting device. as a result of the introduction of the adoptive husband system. Thus, at least in terms of institution, the ideals of equality of the sex,,^.s has been materialized, Seemingly bolstering the status of the women. However, tile adoptive husband system is little more. than a device to ensure the succession to the lineage , of a family mainly on the basis. of male side. Thus, in practice, we cannot be sure that the adoption of that system helped bolster the status of the women.
Moreover, there are growing opinions favoring the abolition of the family headship system itself, since it represents the legacy of the patriarchal family system. Set in. this perspective, the female family headship system, and the adoptive husband system. even loses its own ground for existence. Moreover its efficacy is poor. In this light,. we come to the conclusion that the abolition of the family headship system would. lead to the abolishment of the female family headship and adoptive husband systems.
3) Prohibition of marriage among persons identical in surname and family origin,. and the status of women.
The Korean system banning a marriage between person identical in surname and. family origin is unprecedented in the world in the range of the prohibitions, and, impinges on the freedom of marriage. Especially, the system not only ignores the status of women but also runs contrary to the principle of equality between the sexes, since the range of marriage prohibition is based on male lineage. Therefore, we suggest it is plausible, for the sake of the rational operation of that system, to interpret the range of the prohibition in a narrow sense within the context of Article 777 of the Civil Law. And we suggest that a new legislative action commensurate with the reality is necessary.
Therefore, we come to the conclusion that such relations between the legitimate -mother and illegitimate son should be abolished.
4) Status of women under the divorce system based on agreement.
The countries which have adopted a divorce system like ours based on agreement include only China and Japan.
The divorce system based on agreement sees to assure the freedom of divorce, but -in reality, the freedom of divorce by agreement means in Korean society where the status of women is weak, freedom only for the husband. Especially, in Korea where a wife after divorce is usually unsure of the means of living, and the procedure of confirming the will of divorce is loose, such a divorce system may prompt husbands to impose their will on the other party. Hence, we come to the conclusion that the ,divorce system based on agreement should be abolished unless there arc social recurity measures for the wife, and that it is, therefore, reasonable to apt for a divorce ;system based on arbitration.
[2] Law of succession. 1) As for the status of daughters under law of succession, the qualification of succession to family headship is recognized, but the daughter stands behind the son in the order of succession. A daughter is, after marriage, in principle, not entitled to become the successor. This, in formality, runs contrary to the principle of equality between daughter and son. As for the property inheritance, daughters in one-half of the son's, while the amount of shares is different among the same daughters depending on whether they belong to the same family register, this is incompatible with the principle of equality. The impossibility, for woman to succeed to family headship in the existing system and the discrimination between the sexes in allocating the shares of inheritance also run contrary to the trend of legislation. Therefore, we come to the conclusion that the family headship succession system should be abolished, and revisions should be made in accordance with the principle, of equal shares of inheritance.
2) As for th:: status of a widowed wife under the law of succession, the order of priority in the succession to familyship is in compatible with equality, in property inheritance, the order of priority for successors contravene the principle of equality between husband and wife, while the difference in shares of property inheritance runs contrary to the principle of equality between the sexes. Therefore, we come to the ,conclusion that the law should be revised in accordance with the principle of equal and equitable shares of property inheritance between the sexes, on condition that the family headship system will be abo lisped.
chafter 3. 1) Problem of the present days of current code, and women's movement
The Family law, being aproduct of the cultural and social values based on the Confucian influnce of the past several hundred years which gave strong preference to the male, reinforced the tradition of male superiority rather than equality as guaranteed by the constitution. Discrimination against the status of women was fortified by the family law in various provisions dealing with family affairs. This discrimination .against women in favor of the traditional $quot;son-centered$quot; confucion family system is a problem of concern that has been taken up by more than sixty women's voluntary organization to eliminate sex discrimination in The Civil Code in 1973. the Korean national council of women, the league of women voter, the Korean Association of university women, Legal Aid Center for family relation, the YWCA and many others have established the pan-women organization for promoting the revision of the family law. Since the establishment of the family law to guarantee the equality of the sexes and protect the right of women has become the most important objective of the women's societies. As a result of the efforts of the pan-women organization an amendment to the family law was submitted to the National Assembly in 1975, contents of the amendment bill is ① Headship system. ② Scope of relation. ③ Prohibition of marriage among persons identical in surname and family origin. ④ Matrimonial preperty system. ⑤ Consent Divorce system. ⑥ Perental Authority ⑦ The mother-child relation between stepmothor and child, and between legitimate mother and illegitimate son. ⑧ Property Inheritance. ⑨ The law of succession. ⑩ The legitive system however the amendment bills was passed the 5 major items only, in 16th Dec. 1977. Plenary session the national assembly, especially special measures Law Governing Marriage was passed in stead of revison of prohibition of marriage among person identical in surname and family origin, but the special law of marriage is available for a year. Needless to say, this Legal Measure represented the challenging and drawn-out take of turning some of proposition into reality. In view of the result so for achieved Revised Civil Code was displayed on few issue in 10 major items on revision of family law. In. future, many essential preposition we have made in our national plan of action still remain to be salved and we will continue our campaigns and pan-national campaigns.

목차 (Table of Contents)

• 序文
• 第1章 緖論
• 第1節 民事令時代
• 第2節 美軍政時代
• 第3節 大韓民國樹立時代
• 第2章 現行民法上의 不合理性과 家族法改正
• 第1節 親族法上의 女性의 地位
• 第1 戶主制度와 女戶主 및 入夫婚姻
• 第2 同性同本不婚의 原則
• 第3 離婚制度上의 問題點
• 第2節 相續法上의 女性의 地位
• 第1 戶主相續上의 女息의 地位
• 第2 財産相續上의 女息의 地位
• 第3 戶主相續上의 遺妻의 地位
• 第4 財産相續上의 遺妻의 地位
• 第3章 家族法改正과 그 歷史的背景
• 第1節 家族法 改正案과 改正法의 通過經緯
• 第1 家族法改正의 經過過程
• 第2 現行法의 問題點과 改正運動의 背景
• 第3 改正民法의 解說과 現行法 및 外國法과의 比較
• 1. 成年擬制
• 2. 歸屬不分明財産의 夫婦共有
• 3. 協議離婚制度의 合理化
• 4. 親權共同行使
• 5. 相續財産의 新設
• 第2節 同性同本不婚에 관한 特例法의 制度
• 第1 婚姻에 관한 特例法의 解說
• 第2 同性同本不婚의 限時的 救濟와 矛盾點
• 第4章 結論