분묘 등의 승계에 관한 민법 제1008조의3의 해석론

A Study on the Interpretation of Article 1008-3(Inheritance of Graveyards, etc.) in the civil law - Supreme Court en banc Decision 2007Da27670 Decided November 20, 2008 -

Article 1008-3 of the civil law states that the right of ownership in forest land not more than 2.451 acres for graves and farmland for management of graves less than 1983.48 square meters, a genealogy, and ritual implements shall be succeeded to by the person who superintends the ancestral rites. However, Article 1008-3 of the civil law does not state that someone will become the person who superintends the ancestral rites. In the case of Supreme Court en banc Decision 2007Da27670 Decided November 20, 2008, the majority opinion holds new rule: "the goods which are dedicated to the ancestral rites build a special property and should be exempted from the inheritance. And the person who superintends the ancestral rites is decided under joint heir's agreement. If they can not come to the agreement, the eldest son becomes the person who superintends the ancestral rites. And if the eldest son do not exist, the eldest grandson becomes the person who superintends the ancestral rites. And if the eldest grandson do not exist, finally the eldest daughter becomes the person who superintends the ancestral rites." But this Supreme Court en banc Decision 2007Da27670 has several problems. The new rule of supreme court is almost the same as past customary law and does not reflect changed social interactions and new systems. In conclusion, we can not interpret correctly Article 1008-3 of the civil law by the new rule of supreme court. We can solve this problem by amending Article 1008-3 of the civil law appropriately. In other words, we should make explicit regulation that decides the person who superintends the ancestral rites. Article 1008-3(Inheritance of Graveyards, etc.) ① The right of ownership in forest land not more than 2.451 acres for graves and farmland for management of graves less than 1983.48 square meters, a genealogy, and ritual implements shall be succeeded to by the person who superintends the ancestral rites. ② The person who superintends the ancestral rites is decided under joint heir's agreement. If they can not come to the agreement, the family court must decide the most suitable person who superintends the ancestral rites.