제사주재자의 지위와 확인의 이익

The plaintiff brought a lawsuit against the Uiryung Nam-tribe Choongkyunggong-clan Chong-jung (association of families of the Choongkyunggong clan), for a confirmation of his status as the legitimate ancestor worshiper, i.e., that he is the only person authorized to preside over Jesa (ancestral rites) for ancestor Nam Jae of the Chungkyunggong clan. However, the Supreme Court dismissed the case on grounds of lack of any legal interest in confirming the ancestor worshiper status, inasmuch as there is no conflict over property subject to ancestral rites between the parties. The Supreme Court further held that, even if there were such a conflict, the plaintiff should directly demand performance of the defendant or otherwise bring a lawsuit on rights-relationship. This article seeks to demonstrate the following: (a) there is no room for the provisions under Article 1008-3 of the current Civil Act of Korea to be applicable to such ancestral rites premised on genealogy succession as in this case; (b) where, as here, there is a conflict over the ancestor worshipper status between a Chong-jung clan and Chong-son (a clan member who is the legitimate ancestor worshipper), the dispute shall be resolved according to the custom of ancestral rites inheritance as the autonomous norms of the Chong-jung association; (c) according to the custom of ancestral rites inheritance, there is a legal interest in litigating for the confirmation of an ancestral worshipper status, which the defendant denies to the plaintiff, even though the plaintiff is a legitimate Chong-son ancestor worshipper of the defendant Chong-jung clan; and (d) as the resolution to deprive the Chong-son of the legitimate ancestral worshipper status is void, the plaintiff’s claim should have been granted.