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Article 809 of the Korean Civil Code (
Korean Korean may refer to: People and culture * Koreans, ethnic group originating in the Korean Peninsula * Korean cuisine * Korean culture * Korean language **Korean alphabet, known as Hangul or Chosŏn'gŭl **Korean dialects and the Jeju language * ...
: 민법 제809조) was the codification of a traditional rule prohibiting
marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
between men and women who have the same
surname In some cultures, a surname, family name, or last name is the portion of one's personal name that indicates one's family, tribe or community. Practices vary by culture. The family name may be placed at either the start of a person's full name, ...
resulting from belonging to the same
clan A clan is a group of people united by actual or perceived kinship and descent. Even if lineage details are unknown, clans may claim descent from founding member or apical ancestor. Clans, in indigenous societies, tend to be endogamous, meanin ...
and possessing the same genealogical
patriline Patrilineality, also known as the male line, the spear side or agnatic kinship, is a common kinship system in which an individual's family membership derives from and is recorded through their father's lineage. It generally involves the inheritanc ...
and sharing the same ancestral home (''
bon-gwan Bon-gwan (or Bongwan) is the concept of clan in Korea, which is used to distinguish clans that happen to share the same family name (clan name). Since Korea has been traditionally a Confucian country, this clan system is similar to ancient Chine ...
''). On 16 July 1997, the Constitutional Court of Korea ruled the article
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
. The
National Assembly of South Korea The National Assembly of the Republic of Korea, often shortened to the National Assembly in domestic English-language media, is the unicameral national legislature of South Korea. Elections to the National Assembly are held every four years. T ...
passed an
amendment An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. They ...
to the Article in March 2002, which came into force on 31 March 2005, and prohibited marriage only between men and women who are closely related.


Rules restricting marriage

In Korea, a child inherits his or her father’s surname. Traditionally, men and women who have the same surnames and "ancestral homes", called ''dongseong dongbon'' (
Hangul The Korean alphabet, known as Hangul, . Hangul may also be written as following South Korea's standard Romanization. ( ) in South Korea and Chosŏn'gŭl in North Korea, is the modern official writing system for the Korean language. The let ...
: 동성동본,
Hanja Hanja (Hangul: ; Hanja: , ), alternatively known as Hancha, are Chinese characters () used in the writing of Korean. Hanja was used as early as the Gojoseon period, the first ever Korean kingdom. (, ) refers to Sino-Korean vocabulary, wh ...
: 同姓同本), are not permitted to marry. The rule, called ''honinbeop'' (Hangul: 혼인법, Hanja: 婚姻法), originated in China, and can be traced back at least to the late
Joseon Dynasty Joseon (; ; Middle Korean: 됴ᇢ〯션〮 Dyǒw syéon or 됴ᇢ〯션〯 Dyǒw syěon), officially the Great Joseon (; ), was the last dynastic kingdom of Korea, lasting just over 500 years. It was founded by Yi Seong-gye in July 1392 and r ...
in Korea. In the context of Confucianism, the rule was a mechanism to maintain family identities and ensure the integrity of the family as a
sociopolitical Political sociology is an interdisciplinary field of study concerned with exploring how governance and society interact and influence one another at the micro to macro levels of analysis. Interested in the social causes and consequences of how ...
institution. The marriage rule was codified as Article 809 in 1957. It read as follows:
Article 809 rohibition of marriage between parties whose surname and ancestral home are common(1): A marriage may not be allowed between blood relatives, if both surname and its origin are common to the parties.
Those surnamed Kim (Hangul: 김, Hanja: 金), for example, can be divided between 282 different blood ancestors, each of whom are identified with a different ancestral home. The two most populous branches of the Kim clans are
Gimhae Gimhae () is a city in South Gyeongsang Province, South Korea. It is the seat of the large Gimhae Kim clan, one of the largest Kim clans in Korea. The Gimhae Kims claim descent from the ancient royal house of Geumgwan Gaya, which was based in Gim ...
(with 4 million members) and
Gyeongju Gyeongju ( ko, 경주, ), historically known as ''Seorabeol'' ( ko, 서라벌, ), is a coastal city in the far southeastern corner of North Gyeongsang Province in South Korea. It is the second largest city by area in the province after Andong, ...
(1.5 million members). As these two Kim clans descend from different patrilineages, a Gimhae Kim and a Gyeongju Kim can marry. Before the 1997 Constitutional Court decision, however, two members of the 4 million Gimhae Kim could not marry, regardless of the distance of their relationship. Because of population growth, greater mobility and increasing
urbanisation Urbanization (or urbanisation) refers to the population shift from rural to urban areas, the corresponding decrease in the proportion of people living in rural areas, and the ways in which societies adapt to this change. It is predominantly the ...
in South Korea, the chance of meeting and falling in love with someone from one's own patrilineage was much greater. It was especially a problem for the three largest Korean clans, the Gimhae Kims, the Milyang Parks, and the
Jeonju Jeonju () is the 16th largest city in South Korea and the capital of North Jeolla Province. It is both urban and rural due to the closeness of Wanju County which almost entirely surrounds Jeonju (Wanju County has many residents who work in Jeonju ...
Lees. Despite Article 809, many men and women sharing the same patrilineage chose to live together as husband and wife. The common surname marriage ban was temporarily lifted by special acts three times, each for a period of one year, in 1977, 1987, and 1995. At the time of the first special act in 1977, 4577 same name/common ancestor couples became legally married. In 1988 the number increased to 12,443, and by 1996, it had reached 27,807. Some estimate that the actual number is as high as 200,000 couples, nearly 2 percent of all married couples in South Korea. The children born of such marriages were, legally,
out-of-wedlock Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as '' ...
. They were not eligible for national
health insurance Health insurance or medical insurance (also known as medical aid in South Africa) is a type of insurance that covers the whole or a part of the risk of a person incurring medical expenses. As with other types of insurance, risk is shared among ma ...
and were discriminated against in matters of
inheritance Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officiall ...
and
property right The right to property, or the right to own property (cf. ownership) is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically ...
s. The Korean Legal Aid Center for Family Relations established a special report and counselling facility for couples subject to Article 809. Article 809 has been much criticised by family lawyers and the Korean Law Association on the ground that it infringes on the freedom of choice in marriage, and that it reinforces traditional
paternalism Paternalism is action that limits a person's or group's liberty or autonomy and is intended to promote their own good. Paternalism can also imply that the behavior is against or regardless of the will of a person, or also that the behavior expres ...
.


Constitutional case

On 20 May 1995 the Family Court of
Seoul Seoul (; ; ), officially known as the Seoul Special City, is the capital and largest metropolis of South Korea.Before 1972, Seoul was the ''de jure'' capital of the Democratic People's Republic of Korea (North Korea) as stated iArticle 103 of ...
referred to the Constitutional Court the case brought forth by eight couples who asked the court to evaluate the constitutionality of Article 809. They argued that the code violated the "right to the pursuit of happiness" and the "right to family life" guaranteed by articles 10 and 36, respectively, in the "Chapter 2. Right and Duties of Citizens" of the Constitution of the Republic of Korea. Two years later, the Constitutional Court ruled 7 to 2 against Article 809. The court held that Article 809(1) was incompatible with the Constitution and that if the National Assembly did not amend it by 31 December 1998, it would become
null and void In law, void means of no legal effect. An action, document, or transaction which is void is of no legal effect whatsoever: an absolute nullity—the law treats it as if it had never existed or happened. The term void ''ab initio'', which means ...
, commencing on 1 January 1999. The court declared that until the National Assembly amended the article, other courts and
government agencies A government or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an administratio ...
, including
local government Local government is a generic term for the lowest tiers of public administration within a particular sovereign state. This particular usage of the word government refers specifically to a level of administration that is both geographically-loca ...
s, should not apply it. In accordance with this declaration, the
Supreme Court of Korea The Supreme Court of Korea () is the highest ordinary court in the judicial branch of South Korea, seated in Seocho, Seoul. Established under Chapter 5 of the Constitution of South Korea, the Court has ultimate and comprehensive jurisdictio ...
announced new family registration procedures for the applications filed by couples sharing surname and ancestral home before the revision. In addition, parts of the Rules of the Supreme Court on Family Register that prohibited the registration of marriage between these couples (Rule No. 172) and that concerned mistaken registration (Rule No. 176) were abolished. The
majority opinion In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision. Not all cases hav ...
stated that:
the law against marriages between members of the same agnatic lineage descendants violates the dignity of human beings and the right to the pursuit of happiness as guaranteed by the Constitution as well as the right to free marriages and equality.
The majority emphasized the individual's freedom of marriage and asserted that:
majority of the public's concept of marriage has changed from one of "a union between families" to one of "a union between persons", reflecting the respect for a person's
free will Free will is the capacity of agents to choose between different possible courses of action unimpeded. Free will is closely linked to the concepts of moral responsibility, praise, culpability, sin, and other judgements which apply only to acti ...
."
Two
justice Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
s dissented. The first
dissenting opinion A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opinions are norm ...
emphasized that marriage should be publicly recognised through
social norm Social norms are shared standards of acceptable behavior by groups. Social norms can both be informal understandings that govern the behavior of members of a society, as well as be codified into rules and laws. Social normative influences or soc ...
s such as customs, morals, and religion, and dismissed individual freedom as relatively unimportant. It stressed the succession of traditional culture prescribed in Article 9 of the Constitution.


Legislative response

The
Ministry of Justice A Ministry of Justice is a common type of government department that serves as a justice ministry. Lists of current ministries of justice Named "Ministry" * Ministry of Justice (Abkhazia) * Ministry of Justice (Afghanistan) * Ministry of Jus ...
presented a Reform Bill to the National Assembly on 13 November 1998, including the repeal of Article 809. In the face of fierce opposition from Confucian groups, Article 809 was excluded from the bill by the Sub-committee on Law of the National Assembly, despite the 31 December 1998 deadline imposed by the Constitutional Court. On 17 December 1999, the Sub-committee stated that:
In view of the national sentiment which places a great deal of importance on bloodline the abolition of the law prohibiting marriages between people with the same surnames and same ancestral seats is premature.
As the term of the 15th National Assembly ended in May 2000, the Reform Bill automatically died. Following the April 2004 elections, the Ministry of Justice reintroduced its Reform Bill. On 2 March 2005, the National Assembly passed the Korean Family Law Reform Bill, which came into effect on 31 March of the same year.Act No.7427, March 31, 2005. Among the amendments to Korean family law included a reformed version of Article 809:
Marriage may not be allowed between parties whose relationship of blood relative exists within the eighth degree (including the blood relatives for the real- adopted child kept before real-adoption). Marriage may not be allowed between parties if either of them is or was the spouse of blood relative within the sixth degree of relationship, or if either of them is or was the blood relatives within sixth degree of relationship of the spouse, or if either of them is or was the spouse of blood relatives by affinity within fourth degree of relationship of the spouse. Marriage may not be allowed between parties whose relationship of blood relative existed within the sixth degree of adoptive parents lineage and within the fourth degree of adoptive parents affinity.
In the context of the above law, the term ''degree'', called ''chon'' (Hangul: 촌, Hanja: 寸) in Korean, refers to the distance of
kinship In anthropology, kinship is the web of social relationships that form an important part of the lives of all humans in all societies, although its exact meanings even within this discipline are often debated. Anthropologist Robin Fox says that ...
between two persons.
Sibling A sibling is a relative that shares at least one parent with the subject. A male sibling is a brother and a female sibling is a sister. A person with no siblings is an only child. While some circumstances can cause siblings to be raised separat ...
s are considered to be separated by two chons, while children and parents are separated by one chon. Accordingly, a relationship between first cousins would be separated by four chons, and
second cousin Most generally, in the lineal kinship system used in the English-speaking world, a cousin is a type of familial relationship in which two relatives are two or more familial generations away from their most recent common ancestor. Commonly, ...
s by six.


See also

* Confucianism *
Marriage in South Korea Marriage in Korea mirrors many of the practices and expectations of marriages in other societies. Modern practices are a combination of millennia-old traditions and global influences. Marriage in Pre-Modern Korea Marriage During the Koryo Per ...
*
Incest Incest ( ) is human sexual activity between family members or close relatives. This typically includes sexual activity between people in consanguinity (blood relations), and sometimes those related by affinity (marriage or stepfamily), adopti ...


Notes

{{DEFAULTSORT:Article 809 Of The Korean Civil Code Law of South Korea Endogamy Marriage in South Korea
South Korea South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korean Peninsula and sharing a land border with North Korea. Its western border is formed by the Yellow Sea, while its ea ...