분묘굴이 등
1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Facts of recognition;
A. F was married with G on May 4, 1965, and was born on December 26, 1998, on the following grounds: (a) the Defendant was married with G, H, girls, I, and South-North, who was a woman; and (b) the Defendant died.
B. The Defendant, among the 1,104 square meters in the 1,104 square meters in Gyeongnam-gun, installed one grave of the deceased F inboard (hereinafter “instant grave”) on the part of 42 square meters in the ship (a) and connected each point of 1,2, 3, 4, and 1,000 square meters in sequence (hereinafter “instant land”).
C. At the time of the installation of the instant grave, the Plaintiff owned the land at the auction on April 10, 2008 and acquired the ownership of the said land.
The defendant presides over the deceased F's intention in the instant grave.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 1, 2 and 4, the purport of the whole pleadings
2. The plaintiff asserts that, as the owner of the land of this case, the plaintiff sought the digging of the grave of this case and the transfer of the land of this case against the defendant, as the owner of the land of this case, the right to grave base was established on the grave of this case.
3. According to the above facts, the plaintiff is the owner of the land of this case, barring special circumstances, the defendant is obligated to excavate the grave of this case to the plaintiff and deliver the land of this case to the plaintiff.
Meanwhile, in a case where the land which is the base of a grave is owned by a person other than the owner of a grave, if the owner of the land consents to the establishment of a grave against the owner of the grave, the establishment of the right to a superficies similar to superficies for the owner of the grave shall be deemed the establishment of the right to the base of the grave. Therefore, in such a case, the owner of the land shall be bound to limit the exercise of ownership in the land which is the base of the grave to the reasonable extent necessary
(See Supreme Court Decision 9Da14006 delivered on September 26, 2000). Gilet, Gap evidence 6, 7, and Eul evidence 2.