유해에 대한 권리 귀속 결정의 기준 - 대법원 2023. 5. 11. 선고 2018다248626 전원합의체 판결을 중심으로 -

Abstract

Recently, the Supreme Court ruled that it is most reasonable for the oldest of the closest relatives to preside over the ancestral rites. This is a change from the previous Supreme Court precedent that the eldest son is the one who presides over the ancestral rites. Looking at the facts, the deceased's legal spouse and their children filed a claim against the deceased's common-law spouse to deliver the deceased's remains. In this case, it is a question of who is the subject of the succession of the right to the remains. The Supreme Court has ruled that the body and remains of the deceased are passed on to the person who presides over the ancestral rites in accordance with the property used for ancestral rites. In order to discuss the standards for determining the succession of the body and remains of the deceased, the decision standards of the ancestral rite presiding officer must be reviewed. Human remains are objects of special ownership, subject to burial, ancestral rites, and offerings. Since the human remains are the object of remembrance, which is the purpose of the ancestral rites, it is reasonable to determine the noble succussion of rights to the human remains according to the decision method of the ancestor worship supervisor. However, the method of determining a specific person to preside over a ancestral rite based on objective standards has some aspects that make it difficult to reflect the individual circumstances of each family. In modern society, the types of families are becoming more diverse. So it is necessary to decide who will preside over the ancestral rites, reflecting the specific circumstances of each family. Therefore, it is desirable for the court to decide who will preside over the ancestral rites, reflecting the specific circumstances of each family. When the court decides who to preside over a ancestral rite, a standard is necessary for that decision. In order to be recognized as a ancestor worship supervisor, it would generally be reasonable to consider the status relationship with the deceased, past living relationship, the intention and ability of the person who will preside over the ancestral rite, and the opinions of interested parties. Additionally, the deceased's wishes need to be taken into consideration. And in general, the spouse who has the strongest feelings of remembrance should be included in the scope of recognition of the ancestor worship supervisor. Moreover, in modern society, where family forms are diversifying, it is desirable to allow joint or divided succession of the remains so that each family can appropriately commemorate the deceased.