규범조화적 관점에서 본 제사주재자 확정에 관한 판례 변경과 대안의 검토*- 대판(全) 2023. 5. 11. 2018다248626 -

The subject judgment is a case where the eldest son born from a bigamous marriage completed the funeral of the deceased, and the eldest daughter born from a legal marriage sought to retrieve the remains of the deceased. The issue is who is to ‘preside over the ancestral rites’ as stipulated in Article 1008-3 of the Civil Act, and the precedent was changed from gender to age when the family members failed to reach an agreement on the criteria for presiding over the ancestral rites. Both the new and old precedents set forth the agreement of family members as the primary criterion and added a proviso that there would be no special circumstances that would prevent the status of the presiding over the ancestral rites. From a norm-harmoniousperspective,theauthorquestionthe necessity of this precedent change. If the content of the agreement or the will of the deceased, which can be seen as special circumstances, is no different from the case where a specific gender is ultimately given priority, it is questionable whether it is necessary to change the precedent by branding the essence of a special religion or belief as unconstitutional. When we recognize that the principle of the following a Father's Surname remains a product of compromise through the revision of the law that provides strong exceptions, it is reasonable to harmonize the fundamental right that guarantees the inner world of the minority who want to perform ancestral rites by selecting the person in charge of the ancestral rites based on the principle of patrilineal bloodline by presiding over the Confucian standard of “eldest son-eldest grandson-eldest daughter when agreement is not reached” advocated by the full bench of the Supreme Court in 2008 as an emergency and exceptional measure and the fundamental right that conflicts with it. If we establish the prerequisites for this and maintain that the constitutional equality at issue is “equality of inheritance” rather than “equality of status,” then the current inheritance law(Article 1008-3 of the Civil Code), which effectively grants sole ownership of ancestral property to a single ancestral rite presiding officer, should be revised. Adopting collective ownership of ancestral property and analogically applying the provisions of the Civil Act (Articles 40 and 42) to the management and disposal of collectively owned property and the appointment and dismissal of managers (the ancestral rites supervisor), we anticipate that this will foster the democratization of responsibility and procedures for consultation among family members. Rather than making legal judgments on the irrational ancestral rites that predate the Constitution and the Civil Act and the Confucian doctrines that provide the ideology for those rites, we need to propose measures based on the spirit of normative harmony, ensuring that the majority and the minority, one sex and the opposite sex, or the ideology of a particular religion and its opposing religious ideology are not excluded.