제사주재자의 결정방법에 관한 小考

• 영문명: Deciding Rules of the Ancestor Worship Supervisor - A Critical Study on the Supreme Court Decision 2007DA27670 Delivered on November 20, 2008 in View of ‘Tradition’ -
• 발행기관: 경희법학연구소
• 저자명: 정구태(Chung, Ku-Tae)
• 간행물 정보: 『경희법학』제45권 제4호, 55~94쪽, 전체 40쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2010.12.30

영문 초록

study is to critically review a majority opinion relevant to the Supreme Court Decision 2007DA27670 delivered on November 20, 2008 in view of ‘Tradition’. The majority opinion is as in the following: The traditional custom, ‘the legitimate eldest son should preferentially be the ancestor worship supervisor regardless of the agreement among heirs’, ignores the voluntary decision made by heirs and also is against Clause 1, Article 36 of Korean Constitution based on the dignity and equality of human beings. Nevertheless, at the same time, the majority opinion moves toward the following: The ancestor worship supervisor should be elected in accordance with the agreement among the coheirs of the deceased. In case they do not agree on it, the eldest son of the deceased should be the ancestor worship supervisor provided he has no particular reason for which he cannot maintain the position. If the eldest son already died, his eldest son, i.e., the eldest grandson, should be the ancestor worship supervisor. In the event that no coheir has a son, the eldest daughter of the deceased should be the ancestor worship supervisor. The problem is that the majority opinion segregates coheirs according to gender and age. It may be unreasonable in contemporary society, and also it cannot meet its premise and thus contradicts itself. Moreover, it runs counter to the constitutional principles that human equality must be realized even in family relations. As the family law has traditionally been based upon conservatism, traditional values should not depreciated in the construction of law. However, traditional values involve historicity and the times, hence they should be under the contemporary values such as value priority, universal values, justice and humanitarianism. In conclusion, even the traditional values of family system should not be against the spirit of the constitution, i.e., the dignity and equality of human beings.

목차

[사안의 개요 및 소송의 경과]

l. 序言

ll. 전통의 개념화

lll.‘전통’ 담론에 비추어 본 다수의견에 대한 비판적 검토

lV. 소수의견에 대한 검토

V. 結語

키워드

제사주재자 전통관습 다수에 의한 내면화 권위적인 법 관습적인 법 헌법적정당화 평등원칙 Ancestor Worship Supervisor Tradition Custom Internalization Authoritarian Law Customary Law Constitutional Justification the Principle of the Equality.