가족의 성(姓)

Abstract

Recently, gender equality is an important topic in our life, and in particular, there have been media reports on ‘the principle that the father’s surname takes precedence over the mother’s name’ in family law. According to Article 781 paragraph 1 of the Korean Civil Code, it specifies that the father’s name takes precedence when determining the child’s surname, and the surname of the mother can use as the surname of the child that there is an agreement between the parents when registering marriage. This article is criticized from the point of view of gender inequality, and it seems that most jurists agree on the need to reform this article. Family name is not unique to Korean law and culture, so we comparatively studied how other countries determine family name respecting gender equality. According to our comparative study, there are laws of other countries which states ‘the married name’ or ‘the usual name(nom d’usage in French)’ which influence the surname of the child, and there are laws which specify the priority of the convention of the parents to determine the child’s surname. In addition, we can find several ways to determine the child’s surname if one of the parents did not agree in the latter case. Since the introduction of ‘the married name’ or ‘the usual name’ for Korea may lead to social and legal confusion, it is reasonable to study on this subject on the assumption that ‘the married name’ and ‘the usual name’ are not introduced. That is to say, it is difficult to change the family name once decided, according to the principle of the immutability of the family name. Therefore, one must be more careful in determining the surname of the child. On these important issues, we propose a way to reform ‘the principle that the father’s surname takes precedence over the mother’s name’ into the principle that the father’s surname takes precedence if there is no agreement between parents, to introduce another method of determinations, and to change the time of determination from the time of registration of marriage to birth registration of the child. Through these studies, our law should introduce a family name-determining method that society agrees with.