[분묘기지권의존속기간확인청구][집30(1)민,45;공1982.4.1.(677) 301]
The duration of the right to grave base (a similar superficies for the protection of a grave)
With respect to the duration of a similar superficies and superficies for the protection of a grave, the provisions on superficies under the Civil Act shall not apply, but shall apply if there are special circumstances, such as an agreement between the parties, etc., and in the absence of such circumstances, the right to grave base shall continue to exist while the grave continues to exist as long as the right holder continues to protect and serve the grave.
Article 281 of the Civil Act
Plaintiff (Appointed Party)
The Intervenor joining the Plaintiff
Defendant
Daejeon District Court Decision 81Na116 delivered on October 8, 1981
The appeal is dismissed.
The costs of appeal shall be borne by the appellant.
The grounds of appeal are examined.
According to Article 185 of the Civil Act, a real right cannot be created at will other than that provided for by law or customary law. However, a person who legally installs a grave on another's land shall acquire a kind of real right that is inherited on that land (see, e.g., Supreme Court Decision 4294Da1451, Apr. 26, 1962). This refers to so-called "a similar superficies or the right to graveyard for the protection of a grave." This refers to the so-called "a similar superficies or the right to graveyard" under the Civil Act, not to follow the provisions on superficies under the Civil Act, if there are special circumstances such as an agreement between the parties. In the absence of such circumstances, it is reasonable to interpret that the right to graveyard continues to exist while the grave continues to provide care and service for the grave. Accordingly, the decision of the court below with this purport is justifiable, and the dissenting opinion that the violation of the Civil Act is not adopted in the case of original sale under Articles 280 and 281 of the Civil Act.
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeon Soo-hee (Presiding Justice)