• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.199-239
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• 2010

In 2008, the Korean Supreme Court came across a plaintiff's claim to return his deceased father who had left family more than four decades ago and lived with another spouse(de facto) in the meantime to be buried after death in a cemetery of his own choice. The major opinion decided to approve the claim, on the ground that the first legitimate son should be the "head worshiper" prescribed in the article 1008-3 of the Korean Civil Code and that the corpse belong to the head woshiper, i. e. the head woshiper has a special "limited ownership" over the corpse for the purpose of its burial and worship, adding that a deceased's disposition inter vivos, if any, be only ethically but by no means legally binding others, including the head worshiper of course. Here scrutinized are the historical developments starting from the Roman criminal law of sepulchri violatio(trespass to grave) through the Canon law of the Middle Age and the doctrinal reactions to the challenges of anatomy and surgery to the formation of the "supporting the deceased" theory in Germany as well as the similarities in other european continental countries(Switzerland, Austria and France). The comparative review shows that the right of remaining family could neither be identified as limited "ownership" nor that the controversy over a corpse be solved by exclusively attributing/distributing it to one/some of the descendants. In principle, the question should be approached in the extension of family support.

• The Journal of the Korea Contents Association
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• v.12 no.9
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• pp.202-210
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• 2012

Since Civil Law recognizes the freedom of a testament, it recognizes the freedom allowing the decedent to dispose his/her own property at his/her own intention. However, in order to prevent various abuses which may occur when the principle of freedom of testament is carried out unlimited, secured portion system is stipulated. So, absolute freedom of property disposed by the deceased is limited. Likewise, the secured portion system is introduced as the system to resolve the contradiction that exists between principle of freedom of testament and legal inheritance. Since Supreme Court Decision 2010DA50809 delivered on May 24, 2012 includes major legal issues such as how to exercise of claim of return for secured portions, transfer of the secured proportion or the claim of return for secured portions, and exercise of claim of return for secured portions against a third party. So, it has a very important meaning. In this paper, legal issues regarding the exercise of claim of return for secured portions have been reviewed with this decision.