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Article South Korea: Amendments to Take Effect Addressing Constitutionality of Family Relations Registration Act

On July 19, 2024, amendments to South Korea’s Act on Registration of Family Relations enacted to correct provisions found unconstitutional by the Constitutional Court will come into effect.

Act No. 19547 (July 18, 2023) amended the Act on Registration of Family Relations (Act No. 8435, May 17, 2007, as amended) in accordance with a March 2023 decision of the Constitutional Court that found some provisions violated the constitutional rights relating to birth registration of children born out of wedlock. (Constitutional Court of Korea, Affirmation of Nonconformity to the Constitution of the Article 46 (2) of the Act on the Registration, Etc. of Family Relationships, 2021 Hun-Ma975, March 23, 2023 (unofficial translation).)

Background: Constitutional Court Decision

In its March 2023 decision (Constitutional Court of Korea, 2021 Hun-Ma975, March 23, 2023), the Constitutional Court held that children have a fundamental right under South Korea’s Constitution to have their birth registered immediately after birth. It further ruled that articles 46 (2) and 57(1) & (2) of the Act on Registration of Family Relations violated the Constitution  because they did not allow a biological father to report the birth of a child born to a mother married to another man.

The case arose when children born out of wedlock and their biological fathers who were not their mothers’ husbands filed the constitutional complaint that the provisions infringed out-of-wedlock children’s right to be registered immediately after birth and the biological fathers’ rights to custody, freedom of family life, and equality.

The Constitutional Court affirmed that the right of out-of-wedlock children to be registered immediately after birth is a fundamental right based on the Constitution’s article 10 (the personal right to human dignity and worth and the right to pursue happiness), article 34 (1) (the right to a life worthy of human beings), article 34 (4) (the duty of the state to implement policies to enhance the welfare of the young), and article 36 (1) (the guarantee of family life).

The Constitutional Court held that the rights of the out-of-wedlock child complainants to be registered immediately after birth was infringed. The court noted that the legislative objective of these provisions of the act is to ensure birth registration and to provide accurate identification of children as to their biological relationships, nationality, etc. But the court pointed out that the current birth declaration system fails to ensure effective birth registration for children born of a married woman and a man other than her husband. In such cases, under article 46 (1), the married woman and her husband are obligated to register their birth because the child is assumed to have been conceived in wedlock. (Civil Act, Act No. 471, Feb. 22, 1958, as amended, art. 844 (1).) However, there are circumstances under which the married woman would not report the child’s birth because she does not want to reveal she has committed adultery, and her husband would not report the child’s birth because the child is not his biological child. The court further observed that while under article 46 (3) of the act, a prosecutor or local government may report a birth of the child instead of parents when a child’s welfare could be harmed, it is not mandatory, and it is also difficult for them to find out such circumstances of children.

The Constitutional Court noted that if a mother or her husband does not register an out-of-wedlock childbirth within the reporting period, effective methods for birth registration could include allowing the biological father to register the out-of-wedlock childbirth or imposing an obligation to a medical institution to send relevant data of childbirth for the registration ex officio.

On the other hand, regarding the complaints of their biological fathers who are not their mothers’ husbands, the court held that the provisions do not infringe their constitutional rights. Regarding the right to equality between married mothers of out-of-wedlock children and their biological fathers, the Constitutional Court stated that there is a rational reason for the different treatment, and thus the court found the rights of the complainants who were natural fathers were not infringed.

While finding that the provisions violated the rights of the out-of-wedlock child complainants, the court ordered their continued application until the legislature enacted remedial legislation, which the court said must be done no later than May 31, 2025.

Amendments to Family Relations Registration Act

The amendments in Act No. 19547 address the constitutional infirmities in the Act on Registration of Family Relations identified by the Constitutional Court. The amendments

    • allow new forms of verification of a child’s birth to a mother by persons involved in the delivery, by domestic or overseas authorized agencies, or through records of rescue operations or emergency medical services (art. 44(4) 1-3);
    • specify the obligation of medical institutions to submit specified birth information into the mother’s medical records (art. 44-3);
    • provide for the recording of births ex officio even if the parents do not register the birth (art. 44-4); and
    • give local governments the right to request necessary documents for registration of birth (art. 44-5).

Prepared by Inseol Hong, Foreign Law Intern, under the supervision of Sayuri Umeda, Foreign Law Specialist

Law Library of Congress, July 2, 2024

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Chicago citation style:

Umeda, Sayuri. South Korea: Amendments to Take Effect Addressing Constitutionality of Family Relations Registration Act. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-07-01/south-korea-amendments-to-take-effect-addressing-constitutionality-of-family-relations-registration-act/.

APA citation style:

Umeda, S. (2024) South Korea: Amendments to Take Effect Addressing Constitutionality of Family Relations Registration Act. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-07-01/south-korea-amendments-to-take-effect-addressing-constitutionality-of-family-relations-registration-act/.

MLA citation style:

Umeda, Sayuri. South Korea: Amendments to Take Effect Addressing Constitutionality of Family Relations Registration Act. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-07-01/south-korea-amendments-to-take-effect-addressing-constitutionality-of-family-relations-registration-act/>.