유체의 사후처리에 관한 사망자의 인격적 이익의 법적 존중과 보호 - 대법원 2023. 5. 11. 선고 2018다248626 전원합의체 판결과 대법원 2023. 6. 29. 선고 2021다286000 판결에 관하여

In its interpretation of the statutory obligation of the head of a local government to dispose of an unclaimed dead body, which is stipulated in Article 12 of the Act on Funeral Services, the subject case (Supreme Court Decision 2021Da286000 decided June 29, 2023) elucidated that the statutory obligation includes the obligation to reasonably manage the unclaimed dead body, rather than merely burying and cremating the body in a certain period of time. Furthermore, the obligation to dispose of an unclaimed dead body under the Act on Funeral Services is explained in terms of the state’s obligation to protect fundamental rights. In addition to the bereaved family’s right to commemorate the deceased, the Court also cited the deceased’s personality rights regarding the posthumous disposal of his or her body. The Court stated that “the right to one’s own body is fundamental to the right to personality and must be respected in the most comprehensive manner possible, even after death. The disposition of the body following death represents a fundamental aspect of human dignity.” The initial case to address the matter of posthumous disposal of the dead body from the perspective of the deceased’s posthumous personality rights was Supreme Court en banc Decision 2007Da27670 decided November 20, 2008, which ruled on the method of determining the person who will superintend ancestral rites. In the event of a discrepancy between the decedent’s intention regarding the method of the disposal of his of her remains and the intention of the person superintending ancestral rites, who is the successor to the decedent’s remains, the majority opinion initially sought to ascertain the rightful owner of the decedent’s remains. Subsequently, it was determined that the wishes of the decedent in relation to a living holder (successor in title) are merely a matter of moral obligation by that holder. However, some dissenting opinions highlighted the necessity to provide legal protection to the deceased’s wishes concerning their corpses in the context of posthumous personality rights and the exercise of the right to self-determination. In this regard, the recent Supreme Court en banc Decision 2018Da248626 decided May 11, 2023, altered the method of determining the person who will superintend ancestral rites. Notably, both the majority and dissenting opinions in the 2023 Supreme Court en banc Decision explicitly considered the deceased’s wishes in determining the person who will superintend ancestral rites. This strongly suggests a shift in the jurisprudence towards legally respecting and protecting personality rights of the deceased regarding the posthumous disposal of the remains. In the context of comparative law, numerous legal systems afford priority to the wishes of the deceased with regard to the posthumous disposal of their dead bodies. In some instances, these wishes are even accorded legally binding effect, even when they are to the exclusion of the bereaved. This approach effectively prioritizes the wishes and personality rights of the deceased. The rationale for the legal respect and protection of the deceased’s personality rights regarding the posthumous disposal of corpses can be found in three key areas of discussion: the legal status of corpses, posthumous personality rights, and the harmonization of the legal framework. There is a theoretical basis for the argument that the personality element, which is an inherent property of corpses, should be subjected to detailed consideration in the context of legal relations surrounding corpses. It is essential to examine the scope and boundaries of legal protection afforded to the personality element inherent to corpses. It is crucial to comprehend personality rights of the deceased in relation to the corpses within the context of the deceased’s personality rights and the right to self-determination with regard to their own body. Furthermore, personality rights of the deceased in relation to the posthumous disposal of their remains are distinct from those of the bereaved. In the event of a conflict between the two, it is appropriate to prioritize personality rights of the deceased. Furthermore, recent legislative developments, including Constitutional Court Decision on unclaimed corpses offered to medical school as cadavers (2021Hun-Ma940 decided November 26, 2015), the 2016 amendment to the Act on Dissection and Preservation of Corpses, and the 2023 amendment to the Act on Funeral Services regarding the designation of a funeral celebrant in accordance with the will of the unclaimed dead also prioritize the deceased’s personality rights regarding their dead bodies, which aligns with the evolving trend in our jurisprudence. In light of the aforementioned discussion, it becomes evident that the paramount legal interest to be taken into account when interpreting the Act on Funeral Services, which pertains to the obligation to dispose of unclaimed dead bodies, is the deceased’s personality rights on their remains. The rationale behind the subject decision can thus be elucidated. The 2023 Supreme Court en banc Decision affirmed the deceased’s personality rights regarding the posthumous disposal of their corpses as a means of actively considering the wishes of the decedent in the context of determining the person who will superintend ancestral rites. The subject decision recognizes and emphasizes the deceased’s personality rights regarding the posthumous disposal of corpses in and of itself. The subject decision should be understood as an extension of the change of perspective set out in the Supreme Court’s en banc decisions on the law relating to corpses. The Supreme Court’s decisions are pertinent in that it provides an interpretation that actively considers the protection of the deceased’s posthumous personality rights.