Comparative study on the family name

Junhyung Park
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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.
姓氏的比较研究
最近,性别平等是我们生活中的一个重要话题,特别是有媒体报道了家庭法中“父姓优先于母姓”的原则。《民法典》第781条第1款规定:“在确定子女的姓氏时,以父亲的姓氏为准,在登记结婚时,可以使用父母之间有协议的母亲的姓氏作为子女的姓氏。”这篇文章从性别不平等的角度受到了批评,似乎大多数法学家都同意需要对这篇文章进行改革。姓氏并不是韩国法律和文化所独有的,所以我们比较研究了其他国家如何在尊重性别平等的情况下确定姓氏。根据我们的比较研究,其他国家的法律规定“已婚姓名”或“常用姓名”(法语中的nom d ' usage)会影响孩子的姓氏,也有法律规定父母的惯例优先决定孩子的姓氏。此外,如果父母一方不同意后一种情况,我们可以找到几种方法来确定孩子的姓氏。由于在韩国引入“已婚姓名”或“常用姓名”可能会导致社会和法律上的混淆,因此在没有引入“已婚姓名”和“常用姓名”的假设下研究这一主题是合理的。也就是说,按照姓氏不变性的原则,姓氏一旦确定就很难更改。因此,在确定孩子的姓氏时必须更加小心。在这些重要问题上,我们建议将“父姓优先于母名原则”改革为父母无协议以父姓优先原则,引入另一种认定方式,并将认定时间由结婚登记时间改为子女出生登记时间。通过这些研究,我国法律应该引入一种社会认同的姓氏确定方法。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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