제사용재산과 유체귀속의 일체성에 관한 재검토

In this case, the court’s decision is based upon the premise that the dead body referred to in this case was already placed in a graveyard. So, it is clearly appropriate that the dead body within the graveyard, which is a property used for the ancestral rite, succeeds to the person who superintends the ancestral rite, according to the majority opinion in this case. And the field of fire of this decision should be limited to the condition; thus, its reasoning will not apply to a case in which the dead body has not yet been placed in the grave. It is hard to decide who will superintend the ancestral rite because it is connected directly with the issue of reversion of property for the ancestral rite. Especially if the economic value of the property for the ancestral rite is relatively high, it is not easy to make a compromise among the family of the deceased, and even if such a compromise were reached, someone in the family (such as the oldest son) could interrupt the compromise. Furthermore, the laws of inheritance regarding the property used for the ancestral rite should be reviewed because currently, the property returns to the primogeniture of the former civil law era. As another issue, it could be considered whether a dead person’s intention, inter vivos, can legally bind the family. If a dead person clearly expressed intention before dying about how to treat the funeral and the dead body, the intention should be respected by law.