[분묘발굴등청구사건][고집1967민,98]
(a) The owner of any superficies or similar real right for owning a grave;
(b) Whether it is an invalid act against the public order and morality for a son to sell the forest in which the son is a grave of shipbuilding and to remove the grave from the grave; and
A. Since it is customary in our country that the ownership of a grave of Joseon belongs to a religious ancestor and does not belong to a son, the ownership of a superficies or similar right for the ownership of a grave shall also belong to a son who is the owner of the grave, and the son who is the owner of the grave may also belong to the son who is the owner of the grave without the consent of the son who is the son or the clan.
B. It is difficult to view that disposing of forests and fields on which a ship’s grave is installed and moving them to another grave from the ethical point of view of ancestor worship’s worship as his/her own hand does not constitute an invalid act against public order and good morals.
Articles 96 and 103 of the Civil Act
65Da2310 decided Jan. 31, 1966 (Supreme Court Decision 196Da1562 decided Oct. 8, 1959; Supreme Court Decision 96Da621 decided Oct. 621, 196)
Plaintiff 1 and 72 others
Defendant
Gwangju District Court of the first instance (66A34 delivered on July 1, 200)
The appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff, etc.
원고등 소송대리인은 당심에 이르러 청구취지를 감축(일부 소 취하)하여 피고는 보성군 문덕면 봉갑리 산 36번지의 4 임야 11정 7묘보중 별지도면 (가)지점(동소 563번지 답 최서단 지점)으로부터 동남방 89미터(49간) 상거된 "ㅕ"지점에 있는 분묘 및 동소 520번지 답북단 별지도면 "나"지점으로부터 서북방 50.9미터(28간)상거한 "ㅛ"지점에 있는 분묘를 발굴하라.
The court costs are assessed against the defendant in both the first and second trials.
원래 보성군 문덕면 봉갑리 산36번지의 4 임야 11정 7묘보안에 있는 별지도면표시 "ㅕ"지점 및 "ㅛ"지점에 원고 등 및 소외 1, 2 등의 조선 분묘가 설치되어 있는바 위 분묘 등은 다른 곳에 옮겨지고 바로 그 자리에 현재 피고의 망부와 망모의 분묘가 설치되어 있는 사실 및 원고 등은 위 조선의 방계자손들이고 소외 1은 종손이며 소외 2는 소외 1의 장자인 사실은 당사자 사이에 다툼이 없다.
The plaintiff's attorney, as the plaintiff's non-party 1's owner of the above clan 40 years ago, had been established with the plaintiff 1's 11's son and 10's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's.
If so, as long as the defendant, etc. who acquired the above woodland has moved to another grave after disposing of the forest land where the son, who is the owner of the said grave, was installed, the plaintiff, etc., who is not the owner of the said grave, shall not be involved in this act.
The plaintiff et al.'s attorney, even though the exchange contract for the above grave base is not a contract with an unentitled person, even if it was not a contract with the unentitled person, he was established in around 300 years before the plaintiff et al., and has the right to symbolic and permanently maintain it. Thus, the contract to excavate the grave in order to restore the plaintiff's shipbuilding foundation to the same branch is contrary to the public order order under Article 103 of the Civil Code. Thus, it is argued that it is against the public order order under Article 103 of the Civil Code. Thus, in this case, the disposal of the forests and fields on which the ship's grave is installed and moving the grave to another grave to the grave cannot be considered as an act against the public order and good faith. Thus, it is difficult to see that the plaintiff et al.'s attorney is not a position to participate in the above disposition as long as it was against the public order and good faith. Thus, the above assertion by the plaintiff et al. should no longer be rejected.
Therefore, the plaintiff et al.'s claim in the principal lawsuit shall be dismissed on the ground that the original judgment is just, and the appeal filed by the plaintiff et al. shall be dismissed on the ground that the appeal filed by the plaintiff et al. shall be dismissed.
Judges Kim Yong-dae (Presiding Judge)