자녀의 성(姓)에 대한 검토 - 민법 제781조의 문제점과 개정 독일 성명법의 시사점을 중심으로

Review of the Surname of Children : Focusing on the Problems of Article 781 of the Korean Civil Code and the Implications of the Amended German Naming Law

This paper examines the modernization of the right to a name under the Korean Civil Code, focusing on Article 781 and the implications of the 2024 amendment to the German Civil Code (BGB) concerning children’s surnames. The study highlights how the revised German Namensrecht offers meaningful guidance for Korea in promoting gender equality, child welfare, and individual autonomy in family law. First, in terms of gender equality, Article 781 of the Korean Civil Code still adheres to the paternal-priority principle, permitting the mother’s surname only as an exception. Even for children born out of wedlock, the law requires a paternal-centered approach. To ensure equality, parents should jointly determine the child’s surname, and if no agreement is reached, a neutral and gender-equal rule should apply. The German reform provides a model: since 1993, the family court may delegate the decision to one parent, and the 2024 amendment introduces the Doppelname (double surname) system. When parents cannot agree, the child automatically receives both parents’ surnames, reflecting gender equality and the social trend of dual-name families. Second, regarding the welfare of the child, the paper argues that all discrimination between legitimate and illegitimate children must be abolished. Under current Korean law, even if the father of an out-of-wedlock child merely acknowledges paternity, both parents may agree on the child’s surname; the mother may even assign the father’s surname without acknowledgment. However, as legitimate parents with joint custody can decide jointly, only the legal custodian of a non-marital child should have the authority to determine the child’s surname. The study therefore recommends the introduction of a joint custody or parental responsibility registration system. Third, concerning autonomy, parental self-determination should be respected, and when a change of surname is sought, the child’s own will must also be considered. The paper proposes requiring the consent of both the child and the other parent as preconditions for such changes. In conclusion, reforming Article 781 in light of the German experience would advance substantive gender equality, protect the welfare of the child, and strengthen personal autonomy in Korean family law.