제사주재자의 유골인도청구권을 인정한 판례 법리에 대한 비판적 고찰 ―영미법상 사체(死體)·유해(遺骸) 관련 법리의 시사점―

Abstract

The purpose of this study is to reexamine the Supreme Court Decision 2007DA27670 from a critical perspective and find out the implications of the legal principles of the dead body or ashes in the Common law. According to the case, a will to dispose of the own dead body after his death is invalid in Korea because it is not statutory. It is anachronistic and contrary to the purpose of worshiping ancestors and respecting the personal rights of the deceased. On the other hand, the dead body can not be an object of property rights and the bereaved family has temporary authority only within the purpose of disposing of the body in the Common law. Therefore the will left about the disposal of one’s body has legal effect and the court also primarily respects the will of the deceased. By respecting the deceased’s intention the personal rights of the deceased are completely guaranteed. Also it can minimize the legal disputes between interested parties. The authors argue that legal effect should be given to the deceased’s intention that is especially in the will in order to respect the deceased’s right to self-determination. Even if there is no legal effect, at least the intention of the deceased should be considered first. This is consistent with the concept of personal rights which is being discussed in Korea nowadays. It is also appropriate when considering the consistency of the special laws which is related to the disposal of the body such as organs donation or dissection. Above all, if the proper disposal has already been made in accordance with the will, the purpose of the disposal of the dead body should be considered to have already been achieved. So it is not possible to claim transfer the remains. It is expected that this approach will be a way to mourn and respect the deceased in a true sense and enhance the personal rights of the deceased ultimately.