차양자(次養子)에 관한 관습

• 영문명: The Custom of the Chayangja
• 발행기관: 한국가족법학회
• 저자명: 손경찬(Kyoung-Chan Son)
• 간행물 정보: 『가족법연구』第39卷 2號, 163~206쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.07.31

국문 초록

The aim of this study is to investigate the formation and development of the customary practice concerning the Chayangja(次養子, secondary adopted son). The Chayangja was historically recognized as an exceptional form of adoption within the lineage succession system of the Joseon dynasty. During the Japanese colonial period, this institution was further formalized through customary surveys and decisions rendered by the High Court of Joseon. The Chayangja may be defined as follows: when, during the lifetime of the Hoju (戶主, head of the family), the eldest son or adopted heir dies without leaving a male descendant and no suitable nephew is available for adoption, a male relative of the same generational rank is temporarily adopted. If this provisional adoptee later fathers a son, the child is regarded as the adopted son of the deceased, thereby restoring the disrupted line of descent. The provisional adoptee himself is referred to as the Chayangja. This custom, confirmed by the High Court of Joseon in the 1910s, represented a direct continuation of long-standing practices from the Joseon dynasty. Contemporary jurists did not regard the Chayangja as an ordinary adopted child under the Meiji Civil Code, but rather as a special adoptive arrangement intended to preserve the family lineage. Accordingly, the Chayangja became a provisional adopted son of the Hoju, inheriting authority and patrimonial rights, but serving solely as a Seophaengja (祭祀攝行者, surrogate performer of ancestral rites). Upon the birth of his own son — who was granted legal status as the adopted son of the deceased — the Chayangja relinquished the Hoju position and was reinstated in his original family register. This customary institution primarily functioned to ensure the continuity of the clan line in cases where the eldest son of the Hoju died without issue, thereby placing the lineage at risk. The Chayangja was recognized as a temporary Hoju, serving in that capacity until the birth of his son, who then became the principal successor (gadok sangsokin). In this respect, the Chayangja functioned as a provisional “Temporary bridge or Ladder”, linking the deceased eldest son to the succeeding generation. The enactment of the Joseon Civil Ordinance (朝鮮民事令) in 1923 and the resolutions of the Investigative Council (調査會決議) in 1927 significantly transformed the legal status of the Chayangja. Under this revised civil framework, the Chayangja was no longer regarded as a special adoptive child, but was instead assimilated into the category of ordinary adopted children. Subsequent decisions by the High Court of Joseon after 1928 affirmed that the Chayangja immediately acquired property rights, Hoju authority, and kinship status equivalent to those of ordinary adopted sons, independent of whether he later fathered a son. Accordingly, the Chayangja no longer automatically returned to his natal family upon the birth of his own child, nor was succession contingent solely on such birth. The rationale for recognizing the custom of the Chayangja in Joseon was intimately connected to the Confucian hierarchical order of ancestral lines (昭穆之序) and the clan-based adoption system. In contrast to the Japanese Meiji Civil Code, which allowed adopted sons-in-law (Seoyangja, 壻養子) and adoptive sons of different surnames (Iseong-yangja, 異姓養子), the Joseon system permitted only same-surname adoptions (Dongseong- yangja, 同姓養子). Consequently, the death of the eldest son without a male heir posed a serious threat to the continuation of the patrilineal line. Within this context, the Chayangja emerged as a crucial means of preserving lineage continuity, reflecting Joseon society’s determination to uphold the integrity of the clan line, even by resorting to this anomalous form of adoption.

목차

Ⅰ. 시작하며

Ⅱ. 차양자(次養子)에 관한 관습의 형성과 1910년대 조선고등법원의 법리전개

Ⅲ. 1923년 ｢朝鮮民事令｣의 개정과 1927년 이후 차양자에 관한 법리의 변천

Ⅳ. 마치면서

참고문헌

키워드

차양자(次養子) 서양자(壻養子) 이성양자(異姓養子) 동성양자(同姓養子) 제사섭행자(祭祀攝行者) 종법(宗法) 가독상속(家督相續). Chayangja(次養子 secondary adopted son) Seoyangja(壻養子 adopted son-in-law) Iseong yangja(異姓養子 adoptive son of different surname) Dongseong yangja(同姓養子 adoptive son of same surname) Jesa Seophaengja(祭祀攝行者 surrogate performer of ancestral rites) ancestral law(宗法) inheritance of family headship(家督相續)