family relations and gender equality. In the last decade, significant reforms were
made through constitutional adjudications. In 2005 , two important cases cleared
the old paternalistic civil-law provisions. First, the KCC held that Article 781 ( 1 )
contained an unconstitutional element by prohibiting children from following
their mother’s surname because it results in gender inequality in determining their
choice of family name.^34 Second, the KCC invalidated the so-called House Head
System in which a household as the basic unit of the legal family is forced to be
formed around the house head at its core and to be passed down only through
direct male descendants serving as successive house heads.^35 In this case, KCC
held that the provisions of the Civil Code that constituted the backbone of the
House Head System are not compatible with the individual dignity and sexual
equality required by Article 36 ( 1 ) of the Constitution on the ground that, based on
stereotypes concerning sexual roles, it discriminates between men and women in
determining the succession order of the house head, in forming marital relations,
and in forming relations with children.
The infringement of the right to equality was again at stake in theOverseas
Koreans’ Voting Rightscase of 2007.
36
The KCC ruled that Article 37 ( 1 ) of the
Public Officials Election Act was unconstitutional because the requirement of
residency in Korea as the only factor to deprive overseas Koreans of their right to
vote in national elections cannot meet the required rule against excessive restric-
tion, and thereby encroached on overseas Koreans’ right to vote and right to
equality, and the principle of universal suffrage. Due to this case, the election
law was changed so that Koreans residing in other countries are allowed to vote in
national elections such as the general election in April and presidential election
in December 2012.
Freedom of conscience
Since autocratic governments tended to control political dissidents by suppressing
diverse moral and political ideas and dissemination thereof among the public,
Article 19 of the Constitution, which guarantees freedom of conscience, continues
to be a controversial issue, especially defining the concept of constitutionally
guaranteed “conscience.” For example, in a law-abidance oath case, the majority
of the KCC ruled that requiring an oath to abide by law in the parole-review
process only of those inmates convicted of the violation of two major political
(^34) Constitutional Court Decision 2003 Hun-Ka 5 , December 22 , 2005 ,Korean Constitutional
Court Reports, Vol. 17 ,No 2 , 544.
(^35) Constitutional Court Decision 2001 Hun-Ka 9 and 2004 Hun-Ga 5 (consolidated), February
3 , 2005 ,Korean Constitutional Court Reports, Vol. 17 ,No 1 , 1.
(^36) Constitutional Court Decision 2004 Hun-Ma 644 , 2005 Hun-Ma 360 (consolidated), June 28 ,
2007 ,Korean Constitutional Court Reports, Vol. 19 ,No 1 , 859 , 875 – 9. For an English
summary of this case, see Constitutional Court of Korea,The Twenty Years of the Consti-
tutional Court of Korea(Seoul: Constitutional Court of Korea, 2008 ), pp. 332 – 5.