묘지ㆍ장사행정(葬事行政)규제법제의 개선방안에 관한 소고

The burial culture and burial management of Korea is a good custom which is a kind of ancestor worship. However, it has an adverse effect of deforestation. It is a very desirable phenomenon in terms of conservation of the natural environment and efficient land use of the country that the ratio of cremation is almost 80% due to recent changes in the culture of burials. In 2001, the burial system was completely revised from the Act on Burial and Cemeteries to the Act on Funerals etc. and the installation period of the grave was limited to a maximum of 60 years. Since 1927, the time of Japanese imperialism, the customary hereditary right on grave installation has been recognized in the civil precedent which is similar to the superficies. There is an argument of the excessive infringement of land ownership from the viewpoint of the legal logical point. Also, there is criticism about the abolition because of the environmental conservation point. Recently, social consensus about the abolition of the right of grave installation has been broadly formed, and there is a positive movement to change the case law and legislative improvement. The Supreme Court, however, opened a public hearing, but issued a ruling on January 9th, 2017 to maintain existing precedent. The current funeral law does not allow retrospective application because it is applied only to the grave which was built after the implementation of the illegal act in the bylaws, and there are many problems from the policy point of view on the efficient use of the land. Therefore, it is necessary to withdraw the recognition of the grave installation by the change of the precedent in the future, to reduce the maximum period from the amendment of the law to 30 years, and retrospectively applied to the tomb built prior to the enactment of the law to preserve the forest environment and to promote efficient use of the land. Even if retrospectively applied, it is not an unconstitutional legislation since the public interest in the environment is greater than the protection interests of the private property rights guaranteed by the constitution, and it is a fundamental profit restriction for public benefits. In order to lead the change of social perception about the funeral, it should precede the change of civil precedents. In addition, it should be transformed into an active administrative system, such as legalization of subsidized system, subsidies and restoration of forests, subsidization of burial facilities by the government. The funeral administrative legislation system needs to be amended steadily in terms of environmental conservation and efficient use of land.