자녀의 성·본 결정과 모의 성으로의 변경기준 - 대법원 2022. 3. 31. 자 2021스3 결정을 중심으로

The determination and change of a child’s surname : Comments on the Supreme Court decision 2021Se3

The determination and change of surnames is of great interest throughout the world. Traditional notions of the family are changing and the desire to achieve gender equality has led countries to face different challenges. The rise of professional women and later marriage in the West, where it was common for wives to take their husbands’ surnames after marriage, raise fundamental questions about the nature of the married name or the unified family name. In Korea, on the other hand, there is no question of changing surnames after marriage or divorce, but the question is whether the child’s surname should be paternal, maternal or a combination, and in what order. And it’s problematic that the child's surname is determined at the time of marriage, and once a child’s surname has been determined, it could be changed only after divorce or remarriage. Given the strict standard applied in the 2021Se3 decision for permission to change to the mother’s surname, a more proactive and flexible approach by the courts is needed to change to the mother’s surname, unless the right to change the surname is abused. As we have seen in our comparative legal perspective, the decision to give a child a paternal or maternal surname reflects the values and culture of a society. With the realisation of gender equality, the increase in divorce and family diversification, the acceptance of same-sex marriage, Korea will create a social atmosphere in which mothers can freely and legitimately give their children mother’s surname. Korea should also revise its Civil Code to ensure that the selection of a child’s gender from a couple’s surname can be done through a realistic and reasonable process in line with the younger generation’s sense of gender equality.