제사주재자 결정 법리에 대한 헌법적 소고– 대법원 2023. 5. 11. 2018다248626 전원합의체 판결의 평석 -

Abstract

The Constitution is the highest standard of the nation and at the same time the standard of life that exists in the lives of the people, being inseparably related to the daily life of the people. Therefore, it is inferred that the Constitution has and should have the power to induce lifestyle and behavior of the people. In the past, kinship and inheritance were considered to be cultural and customary subjects rather than legal and orderly concerns, inducing negative views on the involvement and control of the Constitution on the subjects. However, it could be stated that there is no realm of life that is irrelevant to the Constitution which is the source of creation and realization of the basic value order of the national community. Thus, the Constitution should be also implemented in the so-called Family Law area on the subject of kinship and inheritance and thereby, guide the lifestyle of the people in accordance with the constitutional value order. The ruling of Supreme Court Sentence 2018da248626 on 2023. 5. 11. was a dispute over who the right to the corpses and remains of the deceased belonged to and the Supreme Court develops its argument by identifying it as a dispute over interpretation of ‘the Ancestor Worship Supervisor’ stipulated in Article 1008-3 of the Civil Act. For the belonging of rights to the corpses and remains of the deceased, various issues are intertwined. But this study aims to comment on the significance of the above ruling as one of the processes of overcoming the patriarchal confucian cultural order and establishing a constitutional order based on individual dignity, autonomy and equality, only including a part of the issues within a limited category. It is attempted to analyze and review the above ruling on the specific issue of understanding ‘the Ancestor Worship Supervisor’ in Article 1008-3 of the Civil Code, which is in accord with the Constitution and thereby, observe the process of incorporating and reinterpreting the succession of ancestral rites, which could be the traces of the religious ideology in confucian cultures and ‘family’ ideology of paternalism, into the content of the modern constitutional order with medium of concept of the Ancestor Worship Supervisor.