CONTENTS
- 1. Lawsuit Claiming Consolation Money, What Were the Detailed Circumstances?
- - Lawsuit Claiming Consolation Money, What Are the Relevant Statutes and Precedents?
- 2. Lawsuit Claiming Consolation Money, What Was the Court's Determination?
- 3. Lawsuit Claiming Consolation Money, What Was Daeryun's Strategy?
1. Lawsuit Claiming Consolation Money, What Were the Detailed Circumstances?
Plaintiff A, who filed the lawsuit claiming consolation money, was the eldest son of the decedent.
A had a half-sibling, B. When the decedent passed away at a long-term care hospital, B, who was at the decedent's side, recognized the fact of the death immediately but did not inform A of it.
B led the decedent's funeral proceedings without A's knowledge and, contrary to the decedent's wish during life to be buried in the family burial ground, placed the remains in a charnel facility.
A argued that, although he was the person presiding over the ancestral rites as the eldest son, B had carried out the funeral proceedings at B's own discretion, thereby infringing his right to preside over the ancestral rites.
He also asserted a claim for the loss of condolence money that he could have received had he presided over the funeral, and on that basis filed the lawsuit claiming consolation money.
Lawsuit Claiming Consolation Money, What Are the Relevant Statutes and Precedents?
The Civil Act contains no explicit provision on the right to preside over ancestral rites. However, Article 1008-3 of the Civil Act, on the ‘Succession to Graves and the Like,’ provides that ownership of the land and farmland belonging to a grave, the genealogical records, and the ritual implements (the instruments used for ancestral rites) is succeeded to by the person who presides over the ancestral rites. This allows the person presiding over the ancestral rites to succeed to the property used for the rites.
The following is a relevant precedent of the Supreme Court.
- See Supreme Court, Decision of November 20, 2008, 2007 Da 27670, among others |
In the past, the person presiding over the ancestral rites was the legitimate heir, that is, the eldest son born to the lawful wife. In 2008, however, the Supreme Court presented a new standard, directing that the matter be determined by agreement among the co-heirs who succeed to the property. The problem then became the case in which no agreement is reached, and the majority opinion of the Supreme Court was that, ‘if no agreement is reached, the right to preside over the ancestral rites should be given to the eldest son or the eldest grandson.’
In 2023, however, the Supreme Court, through its en banc decision, held that, ‘where there is no separate agreement, among the decedent's lineal descendants, the eldest takes priority regardless of sex or of legitimate or illegitimate birth.’
2. Lawsuit Claiming Consolation Money, What Was the Court's Determination?
The district court that heard the lawsuit claiming consolation money partially granted A's claim for consolation money.
The court held that, since as a rule the eldest son becomes the person presiding over the ancestral rites absent special circumstances, B's failure to inform A of the decedent's death and cremation of the decedent against A's wishes constituted a tort that infringed A's right to preside over the ancestral rites.
The court further found that A would have suffered considerable mental anguish from being unable to participate in the decedent's funeral proceedings and from the infringement of his rights as the person presiding over the ancestral rites, and it ordered B to pay 3 million won in consolation money.
However, as to the loss of condolence money claimed by A, the court dismissed the claim, finding that there was insufficient evidence that any condolence money remained after deducting the funeral expenses.
3. Lawsuit Claiming Consolation Money, What Was Daeryun's Strategy?
We have analyzed the district court's judgment in the lawsuit claiming consolation money, which ordered the defendant, who had conducted the decedent's funeral proceedings without the knowledge of the eldest son holding the right to preside over the ancestral rites, to pay 3 million won in consolation money.
After a decedent's death, numerous conflicts arise in the inheritance and funeral proceedings. When disagreements occur among the surviving family members, it is advisable to retain a legal professional as early as possible to bring about an agreement among the heirs.
In particular, whether and how to divide the inherited property must be decided within three months, and other inheritance-related suits, such as those concerning the legally reserved portion and claims for recovery of inheritance, often have relatively short limitation periods, so the prompt assistance of an 🔗attorney experienced in inheritance matters may be needed.
The 🔗Inheritance and Family Litigation Group of Daeryun Law Firm LLP forms a dedicated team of attorneys suited to each client's case and works to protect clients' rights and interests through tailored solutions, so if you need assistance, you are welcome to request help at any time.
