현행민법 시행 전 異姓養子 및 婿養子의 허용여부

A Debate on Adoptees from Different Clans and Sons-in-Law as Adoptees Allowed before the Current Civil Law - Focused on the Limits of the ‘Restoration of Korean Names’ -

The blood was not so valued before the Goryeo Dynasty, and thus adopting sons from different clans were not uncommon. In the Goryeo Dynasty, however, community members began to make more of blood and so run in their blood through their family names. As a result, they imposed stricter conditions on adoptees and limited the adoptable to children aged less than 3. In the Joseon Dynasty, the society began to pursue Confucianism and then did not qualify sons adopted from different clans to succeed to family lines. Instead, however, it allowed its members to adopt sons aged less than 3 from different clans and eunuch families to adopt sons from different clans. The system lasted during the Joseon Dynasty. During the Japanese occupation, however, adoptees from different clans were not accepted without exception. Then one day of 1939, with the Ordinance-19 the Joseon civil affairs ordinance was revised. Resultingly, Koreans were forced to change their Korean-style names into Japanese-style names and at the same time were allowed to adopt their sons-in-law as their sons and to adopt sons from different clans. After Korea was liberated from Japanese colonial rule, the U.S. military government enacted a special law ‘Restoration of Korean Names’ as it nullified the names changed into Japanese styles and defeased ordinances, laws, orders and even notifications against the special law. However, there was controversy as to how far the special law would be applied. Considering the debate on the recognition of adoptees from different clans and sons-in-law as adoptees under the Ordinance-19 enacted in 1939 and the relevant explanation of Japanese Government-General Korea, it is judged that the recognition of adoptees from different clans and sons-in-law as adoptees is closely related to the change of Korean-style names into Japanese-style names, whereupon adoptees from different clans and sons-in-law as adoptees are deemed to be against the special law. After independence, the administration was executed in accordance with the foregoing interpretation. On May 24, 1994, however, the full panel of the Supreme Court ruled that adoptees adopted from different clans was not illegal until the Joseon civil affairs ordinance was amended on February 11, 1940 (sentence-93므119) and thus broke the precedent. The ruling suggests that the ‘Restoration of Korean Names’ was not to address the problems of adoptees but was only to restore Japanese-style names to Korean-style names. The problem was that the family name system was not reflected in the ruling. The ruling was confined to cases on which the ruling would not exert any influences. However, it is a pity that the full panel of the Supreme Court did not pay close attention when broking the precedent.