The New Right of Burial? A Critical Commentary to the Decision of the Supreme Court of 24.6.2019, Ref. III CSK 267/17

Abstract

The concept of the right of burial, developed in the jurisprudence and upheld in commented judgement is the subject of this paper. In the above-mentioned decision, the heterogeneous concept of the right of burial - a property right in the case of an empty grave and non-property right, when someone is already buried in the grave - has been adopted. Such a classification has consequences in the inheritability and transferability of this right, especially in this second form. The judiciary has created, in the name of proper protection of the personal rights of the deceased's relatives, indirectly, the alternative succession proceedings concerning the non-property right of burial.

            It seems, however, that this concept does more harm than good. The broader legal protection is only illusory, creates the uncertainty in the legal system, unnecessary costs and non-intuitive legal solutions for the addressees of the law. It raises the question whether an a priori rejection of the homogeneous concept of the right of burial conducted in case law is rational. Especially that nowadays, in the era of aging society, funeral law plays an increasingly important role.