Supreme Court: Children Who Change Their Surname and Bon According to Mother's Lineage Have Qualification as Members of Mother's Clan

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that a child who was registered at birth with the father's surname and bon-gwan (clan origin) but later changed to the mother's surname and bon-gwan with court approval has the right to be a member of the mother's clan.

The Supreme Court's First Division (Presiding Justice Park Jeong-hwa) announced on the 13th that it upheld the lower court's ruling in favor of Lee, who filed an appeal against the Yongin Lee clan association to confirm his status as a clan member.

The court stated, "The lower court's ruling in favor of the plaintiff is justified, and there is no error in the legal principles concerning constitutional rights to pursue happiness and freedom of association, customary law on clan membership qualifications, and the principle of paternal lineage as stipulated in Article 781, Paragraph 1 of the Civil Act."

Lee, born in 1988, was registered at birth with the father's surname Kim (金) and bon-gwan Andong (安東).

However, after reaching adulthood, Lee applied to the Seoul Family Court in December 2013 to change his surname and bon-gwan to those of his mother. In June 2014, the court approved the change to surname Lee (李) and bon-gwan Yongin (龍仁) according to his mother's lineage.

Subsequently, in July 2014, Lee completed the registration of the change to his mother's surname and bon-gwan.

Afterward, Lee's mother requested the Yongin Lee clan association to grant Lee membership status, but the request was denied, leading to a lawsuit.

Both the first and second trials ruled in favor of Lee.

Historically, under customary law, clans were defined as natural groups composed only of adult male descendants of a common ancestor, and the Supreme Court had held that non-blood relatives or women could not be clan members. However, this view changed with a 2005 Supreme Court plenary session ruling, and considering the intent of the Civil Act amendment, there was no reason to deny clan membership to maternal relatives.

The Yongin Lee clan association's bylaws stated that "members of this association consist of adult male and female blood relatives who are descendants of the three sons of ancestor A and have a biological relationship. However, even blood relatives who change their surname and bon-gwan to another clan are not recognized as descendants."

In court, the clan association argued, "Descendants of the paternal bloodline who share the clan's common ancestor, surname, and bon-gwan naturally become members regardless of gender. However, even if they share the common ancestor, surname, and bon-gwan, those who are only maternal relatives cannot be granted clan membership."

The clan also contended that ▲ there remains a firm custom that clans are essentially patrilineal kinship groups, ▲ although the bylaws do not explicitly restrict membership to paternal relatives, this was because it was unnecessary to specify given the clan's essential nature, and it does not imply that maternal relatives can be members.

Additionally, the clan argued that ▲ in clans with substantial assets, there could be attempts to join by deliberately changing surname and bon-gwan to the mother's lineage, ▲ if children from remarried families change their surname and bon-gwan to the stepfather's, they would become members of the stepfather's clan, undermining the clan's purpose, and ▲ artificial changes in clan membership through surname and bon-gwan changes contradict the clan's nature as a naturally occurring kinship group.

However, the lower courts rejected these arguments.

The first trial court cited the 2005 Supreme Court plenary ruling recognizing clan membership for women and noted ▲ the defendant clan's bylaws do not restrict membership to paternal relatives, ▲ in contrast, the scholarship program regulations explicitly limit eligibility to paternal descendants, indicating the bylaws were intended without such restrictions, and ▲ denying the plaintiff's membership would result in the clan ceasing to exist, an unreasonable outcome, concluding the clan's claims were unfounded.

The appellate court reached the same conclusion.

The second trial court referenced the 2005 Supreme Court plenary ruling recognizing women's clan membership and the pre-amendment Article 781 of the Civil Act stating "a child follows the father's surname and bon-gwan," noting that the Constitutional Court ruled this as unconstitutional for violating personal dignity and gender equality by not providing exceptions to paternal lineage.

Following the Constitutional Court's decision, the provision was amended to state, "A child follows the father's surname and bon-gwan. However, if the parents agree at the time of marriage registration to follow the mother's surname and bon-gwan, the child shall follow the mother's."

The court then pointed out, "It is reasonable to consider that even descendants of female clan members can be members of the clan. Even if there was a customary law or tradition that descendants of female clan members could not be members of the clan to which the female member belonged, this no longer aligns with our current legal order and has lost legitimacy and rationality."

The court explained, "As stated in the plenary ruling, changes in societal perception and legal order mean that the customary law limiting clan membership to adult males descended from a common ancestor no longer holds legal effect," and "since the plenary ruling addressed only the membership of women sharing the common ancestor and clan name, it does not directly conclude whether descendants of female members qualify as clan members."

However, the court continued, "Given that the customary law restricting clan members to adult males has lost effect and it is reasonable to consider that adult women sharing the common ancestor and clan name are naturally clan members, it is difficult to maintain that descendants of adult women cannot be clan members solely because they are maternal relatives."

The court further stated, "It is natural to consider that children who follow the mother's surname and bon-gwan from birth can be members of the mother's clan, and if a child changes surname and bon-gwan after birth with court approval for personal welfare, there is no reasonable basis to view this as an abuse of the system to acquire clan membership."

Moreover, "Children registered at birth with the mother's surname and bon-gwan or who have changed to the mother's surname and bon-gwan under the Civil Act no longer share the father's surname and bon-gwan and thus cannot belong to or naturally withdraw from the father's clan. Denying clan membership solely because of following the mother's surname and bon-gwan violates the constitutional principle of equality," the court added. The court emphasized that if children who changed to the mother's surname and bon-gwan and cannot be members of the father's clan are also denied membership in the mother's clan, they would belong to no clan, creating an unconstitutional situation.

Regarding the clan's concerns about potential abuses of changing surname and bon-gwan to become clan members, the court responded that ▲ such changes require court review and approval for personal welfare, ▲ judging the scope of clan membership based on potential exceptional abuses is misguided and unfair, and ▲ clan members bear not only rights but also obligations, so membership is not necessarily advantageous.

The Supreme Court found no issue with the appellate court's judgment.

The court noted that considering the 2005 plenary ruling, constitutional provisions on equality (Article 11, Paragraph 1), gender equality in marriage and family life (Article 36, Paragraph 1), the abolition of the family head system, and the Civil Act amendments defining kinship without discrimination between paternal and maternal relatives, there is no basis to treat descendants following the mother's surname and bon-gwan differently from those following the father's.

The court concluded, "According to Article 781, Paragraph 6 of the Civil Act, when it is necessary for the child's welfare to change the child's surname and bon-gwan to the mother's, the adult child naturally becomes a member of the clan sharing the common ancestor and surname and bon-gwan with the mother."

This content was produced with the assistance of AI translation services.