The Constitutional Court of Korea held that an ancient customary law allowing the wife to inherit the property solely when a married eldest son, who is not the head of the household, dies without children or grandchildren does not violate the Constitution. This decision concerns a customary law applied to the inheritance of property by a person who died in 1919. The revised Korean Civil Code abolished this customary law through its enactment and enforcement. In Korea, customary law is considered law enforced in practice without a statutory basis.

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Facts

  1. On September 17, 2026, the Korean Constitutional Court ruled that a customary law before the enforcement of the Civil Act that “if a married eldest son who is not a head of household dies without direct descendants, his property shall be inherited by the wife” is not unconstitutional by a 6-to-3 opinion (2022Hun-Ba120).
  2. Mr. A died in May 1919 and had a wife but no children. His father passed away, and his grandfather was alive and held an Australian passport.
  3. Descendants of the late Mr. B, the younger brother of the late Mr. A, filed a lawsuit, claiming that forest land in Paju City, where the state registered “ownership preservation” in 1983, was originally Mr. A’s land. The Descendants claimed that after Mr. A’s death, the land passed through their grandfather and Mr. B.
  4. The court of first instance dismissed the descendants’ claims, stating, in short, that “According to customary law at the time, Mr. A’s property is to be inherited solely by his wife.” Thus, Mr. B’s descendants had no right to claim ownership of the land by inheritance. All appeals were dismissed.
  5. Mr. B’s descendants filed a constitutional review request for the relevant customary law in the Supreme Court on appeal. The request was rejected, and the parties filed a case directly to the Constitutional Court of Korea.

Constitutional Court Decision (Summary Opinion by Court)

The main issue was whether customary law not enacted as law is subject to a constitutional complaint and whether recognizing a wife’s sole inheritance priority over direct ascendants such as parents or grandparents violates the principle of equality.

The majority opinion of six justices ruled that:

  • Customary law has the same effect as law and is therefore subject to review by the Constitutional Court. It is not excluded from constitutional review simply because it is not statutory law.
  • At that time, inheritance customs distinguished between cases where property was inherited upon inheriting the status of head of household and cases where property was inherited upon the death of a family member who was not the head of the household. Allowing the wife to inherit the eldest son’s property, rather than the head of the household’s, aligns with this system.
  • A wife is someone who, through marriage, forms a living community with her husband, supports and cooperates with each other, and builds wealth. At a time when it was extremely difficult for women to independently enter society and participate in economic activities, there was also a strong need to protect the livelihood of wives who lost their husbands. Considering this, there is a reasonable reason to prioritize the wife over the direct ascendants in the order of inheritance.
  • Just because respect and support for parents and grandparents are important ethical values does not immediately create a constitutional demand that they be recognized as having priority, or at least the same inheritance order, as their spouse.
  • It is also important to consider that if the effect of customary law already recognized is denied afterward, the legal relationships formed on its premise could be overturned all at once, causing significant confusion.

Dissenting opinion

  • Since customary law itself cannot be subject to constitutional complaint under Article 68(2) of the Constitutional Court Act, the claim must be dismissed.
  • It is difficult to consider customary law to have the same effect as laws enacted by the National Assembly, and courts can determine whether customary law conforms not only to the establishment and extinction of customary law but also to the entire legal order, including the Constitution.

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