Open Decision Ledger · Civil obligations & remedies
Time-limit of the new en banc rule and possession after a provisional attachment
Supreme Court, June 15, 2023, 2022Ma7057 (ruling)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 유체동산인도단행가처분·독립당사자참가신청
Official text on the National Law Information Center
Question
Where co-heirs never agreed on who is to preside over ancestral rites, must a court apply the new en banc rule of 11 May 2023, and does a provisional attachment order still leave the debtor in possession of the object when the main action is heard?
Holding
Not as to the new rule, yes as to possession. The 2023 en banc rule on choosing the ritual presider applies only where succession of the property used for the rites took place after that judgment, so the 2008 en banc rule governed here: no agreement was reached among the co-heirs, and the eldest son, the creditor, became the ritual presider, with no special circumstance depriving him of that status. Delivery of the body to the participant under the first-instance order was a temporary state only, so the debtor was still to be treated as in possession of it when the main action is heard.
Points at issue, verbatim
가처분의 집행으로 그 목적물이 채권자에게 인도된 경우에도 본안소송의 심리에서는 목적물의 점유가 여전히 채무자에게 있는 것으로 보아야 하는지 여부(적극)
Unofficial English translation
Where the subject matter of a provisional disposition is delivered to the creditor by enforcement thereof, whether, in the hearing of the action on the merits, the possession of the subject matter must still be regarded as remaining with the debtor (affirmative)
Disposition
Dismissed Stated in the decision
재항고를 기각한다. 재항고비용은 독립당사자참가인이 부담한다.
Unofficial English translation
The re-appeal is dismissed. The re-appeal costs shall be borne by the independent party intervenor.
Form of the test
Existing test applied Read from the decision
이 사건은 2008년 전원합의체 판결 선고 이후이자 위 대법원 2018다248626 전원합의체 판결 선고 이전에 망인이 사망하여 그 유체의 귀속이 문제되므로
Unofficial English translation
In this case, the deceased died after the pronouncement of the 2008 en banc judgment and before the pronouncement of the Supreme Court Decision 2018Da248626, an en banc judgment, and the attribution of the remains is therefore at issue,
Factors
- 공동상속인들 사이에 협의가 이루어지지 않은 경우
- 여기서 말하는 ‘제사주재자의 지위를 인정할 수 없는 특별한 사정’의 의미
- 제사용 재산의 승계가 이루어지는 경우에만 적용되는지 여부(적극)
- 본안소송의 심리에서는 목적물의 점유가 여전히 채무자에게 있는 것으로 보아야 하는지 여부(적극)
Unofficial English translation
• Where no agreement is reached among co-heirs
• the meaning of the 'special circumstances in which the status of the person presiding over the ancestral rites cannot be recognized' referred to herein
• whether it applies only where the succession to the property used for the ancestral rites takes place (affirmative)
• whether, in the hearing of the action on the merits, the possession of the subject matter must still be regarded as remaining with the debtor (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
제사주재자 결정방법에 관한 새로운 법리 대신 2008년 전원합의체 판결의 법리가 적용된다
Unofficial English translation
instead of the new legal principle concerning the method of determining the person presiding over the ancestral rites, the legal principle of the 2008 en banc judgment is applied
Decisions referred to
[1] 대법원 2008. 11. 20. 선고 2007다27670 전원합의체 판결(공2008하, 1727), 대법원 2023. 5. 11. 선고 2018다248626 전원합의체 판결(공2023하, 1028) / [2] 대법원 2007. 10. 25. 선고 2007다29515 판결(공2007하, 1821), 대법원 2011. 2. 24. 선고 2010다75754 판결(공2011상, 638)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where co-heirs never agreed, at what moment does succession of the property used for the rites take place, and does that moment always fall on the date of death?
A later decision fixing the moment of succession of ritual property would decide directly which en banc rule applies to a death falling near 11 May 2023. An amendment to Article 1008-3 of the Civil Act or Article 300(2) of the Civil Execution Act also calls for a fresh reading of this entry.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Where co-heirs never agreed, at what moment does succession of the property used for the rites take place, and does that moment always fall on the date of death?” vs Independent “For succession governed by the new rule, when would the wishes of a majority of coheirs make appointment of the oldest nearest descendant manifestly inappropriate?”
The primary reading asks when succession of ritual property occurs without agreement, while the independent reading asks when a majority's wishes make the appointment unreasonable.
가처분의 집행으로 그 목적물이 채권자에게 인도된 경우에도 본안소송의 심리에서는 목적물의 점유가 여전히 채무자에게 있는 것으로 보아야 하는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its ruling of 11 October 2022 (2022Ra20902, 20903 (joinder)), cancelled the first-instance ruling of 12 August 2022, granted the creditor's application for delivery of the decedent's body against the debtor, and dismissed the participant's application. The body had been laid out at the funeral hall of the hospital run by the debtor after the children fell out over the burial site.
Supreme Court standard: The Supreme Court found no error. It held that, since the decedent died before the 11 May 2023 en banc judgment, the 2008 en banc rule applied and made the eldest son, the creditor, the ritual presider; it also held that the dispute was in substance between the eldest and the second son, and that no special circumstance deprived the creditor of that status. Delivery of the body under the first-instance order was merely temporary, so the debtor remained in possession, and the re-appeal was dismissed with the Justices' unanimous opinion.
Distinguishing conditions
- A case in which succession of the property used for the rites took place after 11 May 2023, so that the new en banc rule governs instead.
- A case in which the co-heirs reached an agreement on who is to preside over the rites, since the rules applied here govern only where no agreement was reached.
- A case in which the eldest child has a special circumstance such as long residence abroad, abuse of the parents, neglect of the grave, refusal to hold the rites, or a result grossly unfair in light of the decedent's will and the co-heirs' views.
Record verification notes
Fix the date on which succession of the property used for the rites took place and set it against 11 May 2023, since that date decides which en banc rule the court will apply. Then check the record for the provisional order, its execution and any pending main action, because the possession rule here speaks only to the hearing of the main action. Finally, gather what the participant offers as a special circumstance and test it against Article 1008-3 of the Civil Act.
From the official text
Points at issue
[1] 공동상속인들 사이에 협의가 이루어지지 않은 경우, 제사주재자를 결정하는 방법에 관한 새로운 법리 및 여기서 말하는 ‘제사주재자의 지위를 인정할 수 없는 특별한 사정’의 의미 / 새로운 법리는 그 판결 선고 후 제사용 재산의 승계가 이루어지는 경우에만 적용되는지 여부(적극) [2] 가처분의 집행으로 그 목적물이 채권자에게 인도된 경우에도 본안소송의 심리에서는 목적물의 점유가 여전히 채무자에게 있는 것으로 보아야 하는지 여부(적극)
Unofficial English translation
[1] Where no agreement is reached among co-heirs, a new legal principle concerning the method of determining the person who presides over the ancestral rites, and the meaning of the 'special circumstances in which the status of the person presiding over the ancestral rites cannot be recognized' referred to therein / Whether the new legal principle applies only where the succession to the property used for the ancestral rites takes place after the pronouncement of that judgment (affirmative) [2] Where the subject matter of a provisional disposition is delivered to the creditor by enforcement thereof, whether, in the hearing of the action on the merits, the possession of the subject matter must still be regarded as remaining with the debtor (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
재항고를 기각한다. 재항고비용은 독립당사자참가인이 부담한다.
Unofficial English translation
The re-appeal is dismissed. The re-appeal costs shall be borne by the independent party intervenor.
Provisions referred to
[1] 민법 제1008조의3 [2] 민사집행법 제300조 제2항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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