장사법(葬事法)의 문제점과 개정방안에 대한 고찰

In Korea, many people prefer cremation over burial these days, therefore the traditional burial custom is changing to a new cremation custom. The reasons are as follows: the promotion of the government funeral policy, the influence of the Funeral Law's regulations for cremation culture and the change of daily-living patterns brought on by industrialization, urbanization, and the growing phenomenon of the nuclear family due to socioeconomic growth. The current Funeral Law regulates the construction of graveyards by requiring notice or permission in order to prevent the inefficient usage of land due to large numbers of tombs when a graveyard is constructed, to limit the period of installation of a tomb to a maximum of 60 years, and to implement a nature-friendly funeral system for solving problems, which are inconvenienced from the insufficiency of funeral facilities and damage to nature from the graveyard, etc. Also, the current Funeral Law regulates to dismantle installed facilities of each applicable tomb and cremate or enshrine buried the remains at the time of expiration of a period of installation of the tomb. Therefore, the current Funeral Law actually recommends and supports cremation. However, the effectiveness of the current Funeral Law has been questioned. The loopholes of the current law has lead funeral policy to provide unclear guideline, resulting in damage to the funeral welfare of the people. Therefore, I will discuss the problems of the Funeral Law and make suggestions for a revised bill. First, the definition of the term ‘the remains’ in the Funeral Law is inadequately defined. This creates problems in the construction of laws relating to the term because of the term's ambiguous and indefinite definition. Therefore, the current Funeral Law needs to regulate the definition of the term ‘the remains’ in order to prevent confusion in the construction of laws. Second, the current Funeral Law uses the phrase ‘an unknown person's body, etc.’, however it does not specify what ‘etc.’ means. It is questionable to what range the legal term ‘etc.’ exactly pertains to. Therefore, the current Funeral Law needs to explicitly specify the term ‘etc.’ in order to interpret the law definitely. Third, when the period of installation of a tomb is calculated in the case of installment of ‘tomb of burial together’, the current Funeral Law does not accurately regulate the definitions of the terms ‘burial together’ and ‘tomb of burial together’. There can be cases in which people have abused the loopholes of the funeral law by maliciously installing the tombs for an eternal period of time. Additional regulations effective since Jan. 13, 2001 have not been applicable to tombs installed before that date. Therefore, the current Funeral Law needs to regulate the definitions of the terms ‘burial together’ and ‘tomb of burial together’ definitely in order to control the increase in the numbers of graveyards and to prevent the permanent installation of tombs. Also, it is necessary to ensure that any tomb installed before Jan. 13, 2001 be calculated by the period of installation of tomb since Jan. 13, 2001. Fourth, the current Funeral Law requires that the person who buries the body must hygienically manage the burial body to a chemical treatment standard. However, in the construction of the regulations concerning the chemical treatment on the body, there is some ambiguity when this regulation is applied due to loosely-defined terms in the regulation. Therefore, the current Funeral Law needs to regulate the definition of the terms ‘the chemicals treatment on the body’ definitely. It is necessary to remove the terms ‘a person who buries the body’ and ‘burial body’ in the regulation of the current Funeral Law in order to make clear the subject of application of the chemical treatment standard on the body. It is also necessary to revise the Funeral Law for the embalmer in order to be applied by law when he/she embalms all bodies professionally without relation to the funeral method. Finally, there is no regulation that requires the funeral service to be held at a funeral home in the current Funeral Law. Therefore, in the case that the funeral occurs in a religious establishment, house, or any other places where a funeral director holds a service such as viewing of the deceased, the bereaved family, acquaintance, condoler, and neighbors can be infected from various diseases from the decreased body. It is a serious concern that there is no regulation in the current Funeral Law to manage the body hygienically in places besides the funeral home establishment. Therefore, it is necessary to make a regulation to manage the body hygienically in places, such as a room in a funeral home, religious establishment, house, and other places where viewing of the deceased can occur. Also, the body must be embalmed by sanitizing and preserving the body hygienically in order to prevent of hazards compromising the safety and health of the people. Additionally, the funeral law requires a new regulation, in which a ‘viewing’ can be held at any location in case of the body embalmed to prevent putting the public hygiene at risk.