헌법재판소의 민법에 대한 위헌심사

The Constitution exerted great influence to the change of the Civil Code. And the role of the Constitutional Court was very critical in this aspect. This paper deals with the unconstitutionality decisions and incompatibility decisions against provisions of the Civil Code by the Constitutional Court. The incompatibility decision against the marriage ban of the same surname couple highlighted the raison d'être of the Constitutional Court, that is, the protection of the minorities, as the Constitutional Court resolved the problem which Legislature could not resolve. Other decisions of the Constitutional Court against the family law provisions can be regarded as resolving the old social controversies. Among the decisions against the inheritance law provisions, the incompatibility decision against the deemed acceptance of inheritance provision and the unconstitutionality decision against the claim for recovery of inheritance provision can be deemed as resolving the problems the judiciary could not resolve. However, the decision that ruled the requirement of writing the testator’s address in holographic will as constitutional, and the decisions which declared that customary inheritance law might be objects of judicial review by the Constitutional Court are problematic. Against the property law provisions the Constitutional Court was more reserved. However, there were a few unconstitutionality and incompatibility decisions. The decision of the Constitutional Court, which declared that applying the prescription provisions of the Civil Code to Past Human Rights Violation Cases as unconstitutional, rectified the wrong precedents of the Supreme Court. In regard to the family law, the Constitutional Court showed very active attitude. It was natural, as the family law provisions in the original Civil Code contained many traditional patriarchal elements and were much different from the modern law. Due to several amendments, this original family law became modern. The Constitution and the Constitutional Court played major roles in this transformation of family law. There was strong opposition against this movement based on the tradition. However, this opposition was overcome. In contrast, the Constitutional Court adopted a relaxed standard in relation to the property law and inheritance law provisions. That is because the Constitution prescribes that the contents of the property right shall be determined by law.