O nowe prawo do grobu? Glosa krytyczna do wyroku Sądu Najwyższego z dnia 24 czerwca 2019 roku, III CSK 267/17
The New Right of Burial? A Critical Commentary to the Decision of the Supreme Court of 24.6.2019, Ref. III CSK 267/17
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This paper concerns the concept of the right of burial, developed in the jurisprudence and upheld in the commented decision. The heterogeneous concept of the right of burial – the patrimonial rights in the case of an empty grave and non-patrimonial rights, when someone is already buried in the grave – has been adopted. Such a clas- sification has consequences in the inheritability and transferability of this right, especially in this second form. The judiciary has created, in the name of the proper protection of the personal rights of the deceased’s relatives, indirectly, the alterna- tive succession proceedings concerning the non-patrimonial right of burial. It seems, however, that this concept does more harm than good. The broader legal protection is only illusory, creates uncertainty in the legal system, unnecessary costs and non-intuitive legal solutions. It raises concerns whether an a priori rejection of the homogeneous concept of the right of burial conducted in case law is rational.
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