Since its creation under the 1987 Constitution, the Korean Constitutional Court has become a major player in Korean politics. Although not expected to play a very important role, the Court served notice with its very first decision that it would be willing to strike legislation and government action that it found to interfere with the Constitution. Since that time the Court has invalidated or partially repudiated legislative acts in hundreds of cases, and has dealt with many crucial issues in Korean law and society, including attempts to bring former dictators to justice, the reform of criminal procedure, media freedom, and economic rights (Ginsburg 2003; Yoon, D.K. 1991; Yoon, S. 2000). It has processed thousands of complaints from ordinary citizens, and has no doubt helped give ordinary Koreans a sense of rights that they had lacked for so many decades under various forms of authoritarian rule.
In the course of its development, it is not surprising that the Court has become a place for various interest groups to bring claims trying to effect social change. Indeed, comparative work suggests that courts that become involved in constitutional policy-making will frequently become battle-grounds for political issues (Shapiro and Stone Sweet 2002). Issues related to the status of women and family law have been particularly controversial in Korea, given traditional Confucian ideology that imbued the family with quasi-religious significance. Scrutinizing family law, therefore, is a good starting point to understand the dynamics of law, tradition, and culture as well as the politics of social change in contemporary Korea.
This chapter considers one constitutional case in Korea which highlights the role of the Court in social change, namely the decision on Article 809 Section 1 of the Civil Code. 1 This case pitted traditional Confucianist groups against a number of couples who had been unable to marry because of a traditional rule that prohibited marriage between persons with shared family origin. The case was particularly controversial as it involved two competing conceptions of Korean tradition, which is protected under the Constitution.