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민법 개정&판례를 통한 사법(私法) 형성 : 제사주재자의 결정과 제사용재산 -대법원 2008.11.20. 선고 2007다27670 전원합의체 판결 상고이유 1의 평석-
이진기 ( Dr Jinki Lee ) 고려대학교 법학연구원 2010 고려법학 Vol.0 No.56
The Supreme Court Decision 2008.11.20, 2007DA27670 [1] is presumably the longest decision on civil affair for the determination of the head of family memorial service which is regulated in article 1008-3 Civil Code. In this decision the Supreme Court states: "The goods which are dedicated to the family memorial service build a special property and should be exempted from the burden of inheritance. The determination of the head of family memorial service follows primarily [1] the agreement of the co-heirs, and alternatively [2] if the complement does not occur, then in order of eldest son, eldest grandson, another son, and finally the eldest daughter, so far as a important hindrance, such like that the head cannot hold a memorial service because of sickness, does not exist." A number of justices of the Supreme Court criticise [2] for anachronistic and anti-constitutional. They argue either the principle of majority voices should be applied or newly introduced custom and customary which reflect the development and the value of the time be adopted as a valuation basis. They hat to answer the question whether the principle of majority voices is a moderate methode or a new custom is in the mean time really introduced and still exists. In addition to it the opposing opinion does not afford a concrete solution to the problem and therefore deserves to be blamed. Anyway it does not even seem to reach an another conclusion. The justices coincide, however. that in case of absence of agreement of co-heirs the active intervention of the court is inevitable. The family memorial service is a preconstitutional and historical social institution. Our focus lies to keep this traditional institution. And an effort to evaluate the worth of family memorial service from the point of rationality and equality is not succeeded and cannot be succeed. Continuity and probablity are the most decisive element to determine a head. Finally, the article 1008-3 Civil Code no longer reflects morals and development of the times, thus should be abolished or revised to meet the needs of the times effectively.
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