[묘지분양권확인][공1994.5.15.(968),1317]
The validity of a contract for the transfer of a right to sell part of a private cemetery concluded for the re-sale of a cemetery by an individual;
According to Articles 8(1), 8(2) and (4), and 18 of the Burial and Graveyard, etc. Act, and Articles 5(1), (2), and 6 of the Enforcement Decree of the same Act, private cemeteries to be sold to others after receiving user fees and management fees may be established and managed at least 100,000 square meters, with the permission of the competent Minister, only by a foundation established for the purpose of establishing and operating such cemeteries, and a natural person is allowed to establish only one family cemetery or a private cemetery, the size of which is 500 square meters or less, and not to operate a sale business by building a private cemetery. In light of the purport of the above provision, a natural person is not allowed to receive a right to sell part of a private cemetery from a foundation and re-sale it to the general public.
Articles 8(1), 8(2), 8(4), and 18 of the Burial and Graveyard, etc. Act; Articles 5(1), 5(2), and 6 of the Enforcement Decree of the same Act
[Judgment of the court below]
[Defendant-Appellant] Korea Park ○ Association, Inc., Counsel for defendant-appellant-appellant-appellant-appellant]
Seoul High Court Decision 93Na11427 delivered on November 4, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
According to Articles 8(1), 8(2), 18(4), and 18 of the Burial and Graveyard, and Articles 5(1), (2), and 6 of the Enforcement Decree of the same Act, private graveyards for the sale of land after receiving usage fees and management fees from others can be established and managed at least 100,000 square meters with the permission of the competent Minister. A natural person is permitted to establish only one family cemetery or one private cemetery, the size of which is less than 500 square meters, and to operate a sale business by building a private cemetery. In light of the purport of the above provision, a natural person shall not be allowed to receive the right to sell part of a private cemetery from a foundation and re-sale it to the general public.
According to the reasoning of the judgment below, the court below recognized the fact that the defendant, a foundation corporation established for the purpose of maintaining and managing the park cemetery, entered into a contract for the transfer of the right to sell the cemetery 6,000 square meters, such as the original cemetery at the time of the original adjudication on June 1, 1987, and held that the above contract for the transfer of the right to sell the cemetery was not a contract for the plaintiff, a natural person, to pay the cemetery rent to the defendant and to acquire the right to use the cemetery, but a contract for the transfer of the right to sell the cemetery 6,000 square meters in the original cemetery at the time of the original cemetery at the time of the original cemetery at the time of the plaintiff's transfer of the right to sell the cemetery in its own name and it was null and void in violation of the provisions of the above Burial and Graveyard Act. In light of the records, the judgment below is just and there is no error of law as to the above statutes
As long as the above disposition of the court below was justified, it is clear that the part as to whether the disposition of the above cemetery, which the court below judged additionally, constitutes an amendment of the articles of incorporation, does not affect the result of the judgment, and therefore, it is without merit to determine the legitimacy of the decision.
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 on the bench.
Justices Chocheon-sik (Presiding Justice)