The Prohibition of Marriage between Koreans of the Same Surname and Clan Origin
Under Article 809(1) of the Civil Code, individuals sharing a common ancestor in their paternal lineage, no matter how far back in time, may not marry. In contrast, under Article 815, as long as a couple does not share a common ancestor in their maternal lineage within four generations, they may marry. Introduced into Korean society with Confucianism in the fifteenth century during the Chosôn dynasty, the principle was established during China's Han dynasty, and gradually weakened until it was abolished by China's Qing dynasty at the turn of the century.
Given that there are only 274 Korean family names, 43% of which are Kim, Lee, or Park, the intra-clan marriage ban has been a serious problem. Based upon statistics gathered by Lee's Korea Legal Aid Center for Family Relations, an estimated 300,000 couples have defied the ban.
Confucian activist groups which have lobbied intensively to keep these provisions intact maintain that the ban exists to prevent the incidence of birth defects, yet this claim belies their well-publicized desire to preserve deference to paternal lineage. Appealing to nationalistic sentiment that Korea's beautiful customs and mores should not be replaced with Western social norms, Confucians have sent letters of the following style and content to the National Assembly:
"Each country has its own traditions and ethics. Under such customs the people prosper. We Koreans have lived by the law forbidding marriage between parties of the same name and origin and have lived prosperously without any problems. The fact that a few unintelligent women want to revise the law and permit marriage among individuals of the same name and origin is nothing but a preposterous demand. This law is our country's beautiful custom. If we permit such marriages, it will bring total confusion to our clan system and bring us back to a primitive family society. In our effort to move forward and become an advanced nation, why should we step backwards towards barbarism in the area of ethics and morals . . ."
Since the ban perpetuates the notion that only the paternal lineage counts in tracing one's roots, their desire to preserve deference to the paternal line underlies their claims.
Through signature campaigns, staged dramas, and public forums, Lee and other advocates for legal reform, have pressured the National Assembly to abolish the provision. For decades, the National Assembly took a compromised position. Refusing to abolish the law, it quietly instituted one-year amnesties from the ban in 1978, 1988 and 1996. Approximately 4,577 marriages in 1978 and 12,443 marriages in 1988 were legalized.
Yet in 1995, Cheju Island's district court asked Korea's Supreme Court if it should recognize the marriage of a couple who shared a paternal ancestor, but married in Japan. This act reflected the public and media's general agreement that the law is devoid of scientific reasoning and that prohibiting marriages between individuals within 8 relational degrees of each other (third cousins) is consistent with the trend of other modern countries.
In a decision that received considerable international attention, the Supreme Court held that such marriages must be recognized noting that it has become a common tendency for couples to either change their last names or circumvent the prohibition by marrying in Japan or America and returning to Korea with a marriage certificate. Following this decision, in May 1995, Seoul's Family Court asked Korea's Constitutional Court to rule upon the legality of marriages between individuals who share a same paternal ancestor and marry within South Korea's borders.
Over two years later, on July 16, 1997, the Constitutional Court overturned the 689-year-old government ban, declaring the law unconstitutional by a 7 to 2 vote. The Court explained that "the law impaired the fundamental right of individuals to pursue happiness." With "its exclusive emphasis upon maintaining the purity of the paternal line, the law violated the spirit of the nation's constitution which establishes that marriages are to be based upon mutual respect and equality."
The Court concluded that only marriages between individuals related to each other within eight degrees on either the maternal or paternal side (closer than third cousins) will be forbidden. With this decision it is estimated that 60,000 Korean couples are now able to legalize their marriages. While Confucianists have angrily announced that "the purity of the Korean race has been destroyed" and "the future holds family chaos," women's leaders view the decision as a "tremendous victory over uncompromising custom and tradition."
If you're still interested and reading, here's a little more...
The notion of "ancestral seat," or pon'gwan in Korean, is something unique to Korea, and it refers to a place, that is a geographical location, where a given surname is supposed to have originated from. The idea is that if two persons share the same surname and the same ancestral seat, then they are descended from the same ancestor, and hence are members of the same family, or clan. For example, the most common surname in Korea is Kim, but even among the Kims, there are more than 280 different ancestral seats. This means that although two people might be both named Kim, as long as their ancestral seats are different, they are not considered "relatives," and are therefore free to marry each other.
The other side of the story, however, is that even though there are more than 280 different Kims, certain Kims from certain ancestral seats are so numerous that for example, the number of Kims from a place called Kimhae is currently almost 4 million. This means that those 4 million people can never marry among themselves. Now, in a country of a little over 47 million people, it is easy to see that this is not an insignificant restriction on one's choice of marriage partners.
From the foregoing account, it might appear that this is such an absurd provision that it should have been a fairly easy case to hold unconstitutional. Yet, one must understand the place of this marriage prohibition within Korean cultural tradition. One must know that because it has been a part of Korean culture for such a long time, it still carries an enormous normative force among ordinary Koreans. It has been taught for ages that this constitutes the backbone of proper family ethics. That is, people were taught to think that to marry someone with the same surname and same ancestral seat is the height of moral depravity, because that is essentially marrying within the "family," in other words, committing incest.
Anyone arguing against this prohibition therefore was seen as someone inciting people to commit immoral acts. This made it all the more difficult to advocate for the repeal or revision of the provision. Marrying someone with the same surname and ancestral seat was simply not done-- it defined the parameters of the people's conception of what a proper marriage in a civilized society should look like.