판례평석: 제사주재자 결정과 관련한 헌법 문제들 - 대법원(전원합의체) 2023. 5. 11. 선고 2018다248626 판결 -

Abstract

The Supreme Court, through the ruling of case 2018Da248626 on May 11, 2023, invalidated the previous ruling of ‘2008. 11. 20. 2007Da7670’ which stated that “the right to inherit the remains of the deceased is succeeded by the person who superintends the ancestral rites whose order is (ⅰ) consultation of the coinheritors, (ⅱ) unless there are special circumstances where the disciple presiding over the ancestral rites cannot maintain their position, it is a male heir such as the eldest son or eldest grandson in the absence of sons among the co-heirs, and in the case where there are no sons among the co-heirs, the eldest daughter of the deceased becomes the presiding disciple.” Furthermore, in cases where there is no agreement among the co-heirs, the lineal descendant of the deceased, regardless of not only sex(gender) but also they were born whether during the marriage or out of wedlock, takes precedence as the presiding ritual host, unless there are special circumstances that prevent the recognition of their position as an heir.” I agree with the intention of citing the plaintiffs’ claims. However, there are criticisms that can be made regarding the logical construction of the majority opinion. Firstly, when determining the presiding ritual host, priority is given to the agreement among the co-heirs, without any consideration for the wishes of the deceased. This conflicts with the existing positions of the Constitutional Court and the Supreme Court, which recognize personality rights of the deceased and their right to self-determination. It is not justifiable to deny the fundamental rights and agency of the deceased. Secondly, when no agreement is reached among the co-heirs, the majority opinion states that the lineal descendant takes precedence, but it excludes the deceased’s spouse without any explanation. As a general principle, the surviving spouse should also be considered as a possible presiding ritual host. Thirdly, the majority opinion states that the second point applies regardless of the gender or whether he(or she) was born during the marriage or not. However, while this may be valid in cases where there is a lineal descendant who is a female and takes precedence as the presiding ritual host, it contradicts the interpretation of Article 36, Paragraph 1 of the Constitution, which protects marriage and family life based on human dignity and gender equality, when the opposite scenario arises, that is, when there is a non-spousal descendant with no substantial family relationship or sense of kinship. Considering this non-spousal descendant as the priority over the presiding ritual host goes directly against the constitutional principles. Moreover, this case pertains to the fundamental rights of the deceased’s lineal descendants that directly affect third parties, and it is an error to consider their exclusion from the position of presiding ritual host as a “special circumstance” that can be taken into account, as it confuses the principles and exceptions.