[분묘굴이등][공2015하,1245]
In a case where a person who acquired the right to grave base by means of an auction, etc. after installing a grave on his/her own land and transferring the land’s ownership to another person, delays the payment of the land rent for not less than two years before and after the final and conclusive judgment due to a cause attributable to the said person, whether a new landowner may claim for the extinction of the right to grave base (affirmative); and in such case, whether a new landowner may claim for the extinction of the right to grave base only when he/she delays the payment of the land rent even after the decision became final and conclusive (negative)
Article 287 of the Civil Act may apply mutatis mutandis to a new landowner of the right to grave base by analogying Article 287 of the Civil Act to a new landowner of the right to grave base, in cases where a person who acquired the right to grave base, after installing a grave on his/her own land and transferring the land to another person by auction, etc., delayed the payment of the land rent for a considerable period of time due to a cause attributable to the final and conclusive judgment, even though the amount of the land rent was set by the judgment, and the delayed payment of the land rent for a considerable period of time, becomes more than two years before and after the final and conclusive judgment. A new landowner of the right to grave base cannot claim the extinction of the right
Articles 185, 279, and 287 of the Civil Act
Plaintiff (Attorney Cho Young-chul, Counsel for the plaintiff-appellant)
Defendant (Attorney Hong Ho-hun et al., Counsel for defendant-appellant)
Chuncheon District Court Decision 2014Na5347 decided January 27, 2015
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
Article 287 of the Civil Act shall apply mutatis mutandis to a new landowner of the right to grave base, in cases where a person who acquired the right to grave base by means of an auction, etc. after installing a grave on his/her own land and transferring the land’s ownership to another person, delayed payment of the land rent for a considerable period of time, due to a cause attributable to the final and conclusive judgment, even though the amount of the land rent was determined by the judgment, and the rent delayed for a considerable period of time, is not less than two years before and after the final and conclusive judgment, and thereby, becomes more than two years, before and after the final and conclusive judgment. A new landowner of the right to grave base shall be deemed to have the right to grave base extinguished by applying mutatis mutandis Article 2
The lower court, based on its adopted evidence, acknowledged that the Defendant deposited the money equivalent to the rent ordered in the above judgment on November 26, 2013 when the Plaintiff filed a claim for the extinguishment of the right to grave base on November 26, 2013, with the payment of rent after April 17, 2009 with respect to the instant right to grave base on February 20, 2013, and the said judgment became final and conclusive, and on which the Defendant did not pay rent more than two years before and after the final and conclusive judgment for a reasonable period of time after the said judgment became final and conclusive, the lower court determined that the right to grave base was extinguished on December 12, 2013, on which the Plaintiff’s declaration of intention to extinguish the Plaintiff’s right to grave base was served on the Defendant.
In light of the above legal principles and records, the above fact-finding and determination by the court below are just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the claim for extinguishment of the right to grave base due to delay in payment of the rent set forth in the judgment, or in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules as to the claim for payment of rent and the decision on
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Sang-ok (Presiding Justice)