A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

CEDAW Country Ratification Report: Republic <strong>of</strong> Korea
In another case, the Court recognised damage compensation liabilities from the
tort actions <strong>of</strong> a pr<strong>of</strong>essor who sexually harassed an assistant <strong>of</strong> the University.
Sexual harassment was held to be in breach <strong>of</strong> Article 10 <strong>of</strong> the Constitution.
Subsequently, however, the issue <strong>of</strong> sexual harassment was clearly defined as a
gender discrimination issue with the amendment <strong>of</strong> the Gender Equal Employment
<strong>Law</strong> on 8 February 1999 and with the insertion <strong>of</strong> provisions on sexual harassment
in the <strong>Law</strong> on the Prohibition and Relief <strong>of</strong> Gender Discrimination.
However, a positive decision, by the Constitutional Court <strong>of</strong> Korea in another case
held that a provision in the Civil <strong>Law</strong> which prohibited marriage between persons <strong>of</strong>
the same surname and same origin was inconsistent with the Constitution. The Court
held that prohibition <strong>of</strong> marriage between parties <strong>of</strong> the same surname and <strong>of</strong> the
same origin is a byproduct <strong>of</strong> the patriarchal system. It has lost its justifiability in light
<strong>of</strong> social changes that have taken place to date. Further, regardless <strong>of</strong> the distance in
degree <strong>of</strong> kinship, prohibition <strong>of</strong> marriage for the reasons <strong>of</strong> same surname and same
origin is an excessive interference with the freedom that must be determined with
respect to every individual: the right to pursue happiness, freedom <strong>of</strong> matrimony,
and to determine as spouse as guaranteed under Article 10 and Article 36(1) <strong>of</strong> the
Constitution. This decision guarantees the liberty <strong>of</strong> marriage.
In another positive decision, the Constitutional Court <strong>of</strong> Korea held that a provision
in tax law to impose gift taxes on property division in divorce was unconstitutional.
The majority held the imposition <strong>of</strong> a gift tax for asset transfer in property divisions
upon divorce has no relationship with gifts that are acquired for free. This decision
means that when divorcing, women are afforded an equal position with men. The
value <strong>of</strong> family labour by women was recognised and the decision enables them to
exercise an equal right to a share <strong>of</strong> the marriage property.
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