[손해배상(기)][공1992.5.1.(919),1297]
Whether a clan may claim compensation for damage caused by an illegal act against another person when the clan has protected and managed the graves of his/her clan (affirmative)
If, in reality or in customs, a member of the family who is the heir of the family has the right to the management of the graves or the religious services, his right shall be exclusively owned by the descendants, and shall not be involved in other descendants or the clans, not by the descendants of the joint ancestor, but by the descendants of the joint ancestor. However, if the descendants of the joint ancestor have been in the care of the graves, the clans may claim compensation for damages caused by the tort if they were damaged by others.
Article 996 of the former Civil Act (Act No. 4199, Jan. 13, 1990); Article 31 of the Civil Act
Supreme Court Decision 91Da14062 delivered on September 13, 1991 (Gong1991, 2531) 91Da24663 delivered on October 11, 1991 (Gong1991, 2713)
Attorney Kim Jin-jin, Counsel for the defendant-appellant from among the Yeung Kim Jin-Jin Kim Jin-Ja
Defendant
Daejeon District Court Decision 91Na1477 delivered on July 18, 1991
The judgment of the court below is reversed and the case is remanded to Daejeon District Court Panel Division.
According to the reasoning of the judgment below as to the ground of appeal by the plaintiff's legal representative, the court below rejected the plaintiff's assertion that the above clan does not acquire the above rights even if it actually safeguarded and managed the above graves on behalf of the family clans, even though it did not belong to the clans, in general, to the defendant's claim for the payment of consolation money for tort against the defendant on the ground that the plaintiff recklessly damaged the ancestor worships that he protected and managed, managed, the court below rejected the plaintiff's assertion.
If, in reality or in customs, the descendants, who are the descendants of Australia, have the right to manage the graves and to maintain them, their right is exclusively owned by the descendants of the clan and shall not be involved in the descendants or the clans other than the descendants of the clans. However, if the descendants of the common ancestor have been managed by the clans, and if the graves have been damaged, the clans shall be able to claim compensation for damages caused by the tort.
According to the records, the facts that the plaintiff clan has managed the graves of this case are the basis for the defendant's human being. Furthermore, if part of the graves of this case were excavated by the defendant on January 1, 1981 and then buried and incinerated remains on the ground, it can be known that part of the graves of this case were damaged by the defendant, such as the removal of furns and cultivation of crops on the ground. Thus, if there are such circumstances, the plaintiff can claim compensation for damages against the defendant as the plaintiff managing the graves of this case as the plaintiff who managed the graves of this case.
The judgment of the court below is erroneous in the misapprehension of legal principles as to the right to protect and manage graves and the right to claim compensation for damages caused by the infringement. Therefore, there is no reason to discuss.
Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho