헌법적 권리로서 애도할 권리 : 망자의 죽음을 슬퍼할 권리에 대한 헌법적 보장의 필요성과 그 내용

The right to mourn, which refers to the right to grieve the death of a loved one, should be constitutionally guaranteed as a fundamental right. Mourning is an acknowledgment of the fact that the deceased person was a dignified being, and it is an expression for the mourners to maintain their own dignity as human beings. The right to mourn is not explicitly guaranteed by the constitution. However, the constitution guarantees the general freedom rights, such as the right to pursue happiness, and also ensures specific freedom rights that are not explicitly enumerated. Therefore, the right to mourn can be recognized as an specific freedom right derived from or implied by the right to pursue happiness. The specific contents of this right to mourn include the right to retrieve the body or personal belongings of the deceased, the right to conduct funeral rites for the deceased, the right to request the determination of the cause of death of the deceased, and the right to demand legal accountability from those responsible for the death. According to Freud, the loss caused by the death of a loved one can be differentiated into mourning (Trauer) and depression (Melancholie). According to this psychological distinction, the sense of loss resulting from the death of a loved one needs to be resolved as a normal emotion through mourning. To prevent such a sense of loss from transitioning into depression, the right to mourn needs to be constitutionally guaranteed as a fundamental right.