South Korea's Constitutional Court has ruled that an old customary law giving a wife sole inheritance rights when a married eldest son who was not the head of household died without children does not violate the Constitution.
The court upheld the provision in a 6-3 decision on the 17th, according to legal sources on the 22nd. The case was a constitutional complaint filed by a group of petitioners, identified as A and others, against the part of the former customary law stating that "when a married eldest son who is not the head of household dies without lineal descendants, his property is inherited by his wife."
The dispute originated in a lawsuit over a forested plot in Paju, Gyeonggi Province, claimed to have been owned by a man surnamed Lim who died in 1919. Lim was married at the time of his death but had no children and did not hold the status of head of household. The petitioners, descendants of Lim's younger brother, sued the state seeking transfer of the title, arguing that the land had passed from Lim to his grandfather and brother and then to them. The court of first instance dismissed the claim, finding that under the customary law Lim's wife had inherited the property outright. The petitioners' appeal and final appeal were both dismissed. While the final appeal was pending, they requested that the court refer the customary law for a constitutional review, and after that request was rejected, they filed a constitutional complaint.
At issue was whether a customary law allowing the spouse of an eldest son who died without lineal descendants to inherit alone, ahead of his lineal ascendants, violated the principle of equality.
The six justices in the majority found that giving the spouse priority did not breach the equality principle. "A wife forms a new community of life with the deceased through marriage and has built up property through mutual support and cooperation," they wrote. "Given the conditions of the era, when it was extremely difficult for women to enter society or engage in economic activity on their own, there was a strong need to protect the livelihood of a wife who was likely to face economic hardship upon the death of the deceased."
The justices added that "respect for and support of lineal ascendants has also long carried important ethical meaning in our society, but it is difficult to find a constitutional requirement that lineal ascendants be given priority over the wife, or at least the same order of inheritance as the wife." They also cited the fact that the customary law was abolished when the Civil Act was enacted and took effect, and that the constitutional complaint was filed more than 100 years after the death of the deceased. "It also needs to be considered that retroactively denying the effect of this already-abolished customary law could overturn all at once every legal relationship formed on the premise that it applied, causing enormous confusion," they said.
Justices Jung Hyung-sik, Cho Han-chang and Jeong Kye-seon dissented, arguing that the complaint should be dismissed on procedural grounds because the customary law cannot itself be the subject of a constitutional complaint. They reasoned that customary law is formed without the involvement of the National Assembly and that the courts determine whether it exists and has effect. "Since the introduction of constitutional complaints against court rulings, where a court ruling results in an infringement of citizens' basic rights in the process of recognizing, interpreting or applying customary law, that ruling can be challenged through a constitutional complaint," they said. "It is therefore difficult to see a need for the Constitutional Court to separately and directly review customary law itself in order to secure relief for citizens' rights and legal uniformity."
