Constitutional Case
On 20 May 1995 the Family Court of Seoul 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, commencing on 1 January 1999. The court declared that until the National Assembly amended the article, other courts and government agencies, including local governments, should not apply it.
In accordance with this declaration, the Supreme Court of Korea 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 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."
Two justices dissented. The first dissenting opinion emphasized that marriage should be publicly recognised through social norms 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.
Read more about this topic: Article 809 Of The Korean Civil Code
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