Attorney Park Jong-sung et al., Counsel for the defendant-appellant

Law Firm Doz., Counsel for the plaintiff-appellant

Attorneys Lee Hun-han et al.

The costs of appeal are assessed against the defendant.

1. Case summary and key issue

A. Case summary

이 사건 임야 중 400m² 지상에는 1940년 7월경 사망한 피고의 조부(祖父)와 1961년 4월경 사망한 피고의 부(父)의 각 분묘(이하 '이 사건 분묘'라 한다)가 설치되어 있고, 피고는 현재까지 이 사건 분묘를 수호·관리해 왔다. 원고들은 2014년경 이 사건 임야의 지분 일부를 경매로 취득한 다음, 피고를 상대로 이 사건 분묘의 기지(基地) 점유에 따른 원고들의 소유권 취득일 이후의 지료 지급을 구하는 이 사건 소를 제기하였다.

In this regard, the defendant argued that he did not have the obligation to pay rent because he has occupied the grave base of this case in a peaceful and public performance for not less than 20 years and acquired by prescription the grave base of this case.

Even in a case where the right to graveyard was acquired by prescription, the lower court partially accepted the Plaintiffs’ claim, deeming that the landowner is liable to pay the rent from the time when the landowner demanded the rent. The Defendant appealed against this.

B. Key issue of the instant case

The key issue of this case is whether the person holding the right to grave base is obliged to pay rent to the landowner when acquiring the right to grave base by prescription.

2. Whether the right to grave base has been acquired by prescription

A. Supreme Court precedents on the right to grave base

The Supreme Court has recognized the right to grave base, which is a real right under the customary law, to possess a grave installed on another’s land. The right to grave base is recognized to the extent necessary to attain the purpose of defending and sprinking a grave, and is also established without registration if it has a form that enables recognition of the existence of a grave from outside, such as a drum, (see, e.g., Supreme Court Decisions 4294Da1451, Apr. 26, 196; 96Da14036, Jun. 14, 196).

The right to grave base may be established in cases where a grave is installed with the consent of the owner of another’s land (see, e.g., Supreme Court Decision 9Da14006, Sept. 26, 2000). Moreover, the right to grave base is established in cases where a person who installed a grave on his/her own land did not make any special agreement to change a grave while transferring the grave to another’s land (see, e.g., Supreme Court Decision 67Da1920, Oct. 12, 1967). Furthermore, even in cases where a grave is installed without the consent of the owner of another’s land, the right to grave base shall be acquired by prescription if he/she occupied the grave base in a peaceful and public performance for twenty (20) years (see, e.g., Supreme Court Decisions 4288Sang210, Sept. 29, 195; 201Da63017, Jun. 10, 2011).

According to the Act on Funeral Services, etc., which was wholly amended by Act No. 6158, Jan. 12, 200, as Act No. 6158 (hereinafter “the Burial Act”), the relative of a grave installed without the landowner’s permission after January 13, 2001, the enforcement date of the Act, cannot assert the landowner’s right to use the land or any other right to preserve the grave (Article 23(3) and Article 23(3) of the Act, which was wholly amended by Act No. 8489, May 25, 2007, was changed to Article 27(3) and maintained its content; hereinafter “the Funeral Act, regardless of whether it was before or after the amendment; hereinafter “the Funeral Act”). Accordingly, the Supreme Court still became unable to assert the prescriptive acquisition of the right to graveyard for a grave established without the landowner’s permission (see, e.g., Supreme Court en banc Decision 2017Da171979, Feb. 17, 20197).

(b) Whether to pay the rent in the case of acquisition by prescription of the right to grave base;

Even if the right to grave base was acquired by extinctive prescription by occupying a grave base on another’s land for twenty (20) years after the date of enforcement of the Funeral Act, the person holding the right to grave base shall be deemed to have the duty to pay the rent from the date of the claim upon the landowner’s claim for the rent on the grave base. The detailed reasons are as follows.

1) In determining the content of a right recognized as a customary law, it shall be determined reasonably by taking into account the legal nature and purport of recognition of the right, balancing interests between the parties, and harmony with the overall legal order. The prescriptive acquisition-type right to grave base is a right similar to superficies established without agreement between the parties, and accordingly, land ownership may be substantially and permanently restricted.

Therefore, it is consistent with the principle of equity to view that the person who acquired the right to graveyard by prescription is obliged to pay the landowner the price for land use within a certain scope.

A) In the case of statutory superficies established under the provisions of law or customary law, rather than according to an agreement between the parties, a superficiary shall pay for land use. In the event that the statutory superficies is established to own a building on the ground pursuant to Articles 305(1) and 366 of the Civil Act and Article 10 of the Provisional Registration Security Act, a superficiary shall pay rent to the landowner. In a case where the land and a building are owned by the same person for reasons such as sale and purchase, and the owner of a building acquires the statutory superficies under the customary law, the Supreme Court has the obligation to pay rent to the superficiary by applying Article 366 of the Civil Act mutatis mutandis (see, e.g., Supreme Court Decision 95Nu1023, Feb. 13, 1996). Furthermore, the Supreme Court applied mutatis mutandis the Civil Act on the claim for reimbursement of rent for the right to graveyard acquired by a person who installed a grave on his/her own land on the premise that he/she would transfer the grave to another person (see, e.g., Supreme Court Decision 20015Da2675.

The prescriptive acquisition-type right to grave base is a limited real right established by the customary law without the agreement of the parties, and even if the exercise of land ownership is restricted for the benefit of the person holding the right to grave base, the parties may not determine in advance whether or not the land rents exist or not. In light of the nature of the prescriptive acquisition-type right to grave base, the determination of the prescriptive acquisition-type right to grave base should be made by taking into account the purport of precedents recognizing the obligation to pay the land rents, etc. in various cases where the limited real right

B) Even if a grave is installed on another’s land, the intent as owned by the owner is not presumed to be the nature of the possession (see, e.g., Supreme Court Decision 90Da17507, Mar. 12, 191). The right acquired by the person holding the right to grave base upon the completion of the statute of limitations is not a land ownership but a limited real right that allows the use of another’s land similar to superficies (see, e.g., Supreme Court Decision 68Da1927, 1928, Jan. 28, 1969). Nevertheless, the right to grave base continues to exist and the grave is not extinguished, and thus, the exercise of the right to grave base by the landowner may be practically permanently and permanently restricted. There are many cases where the landowner is no efficient use of the remaining land excluding the relevant base portion due to the grave.

The purport of recognizing the right to grave base under the customary law is to allow a landowner to use another’s land to the extent necessary for the protection and dypology of graves, not to protect only one of the grave owner and the landowner’s benefit. Therefore, it is necessary to reasonably adjust the interests between the landowner and the right to grave base by allowing the landowner, who is to be at risk of such disadvantage due to the right to grave base established irrespective of his/her own intent, to receive the price for

2) In full view of the historical and social background recognized as the customary law, the trust and legal stability of the parties to the existing factual relations surrounding the grave, the peculiarity of the right to grave base as a customary right, the principle of cooking and good faith, and the purport of the provision on the right to claim an increase or decrease in rent under the Civil Act embodying these values, it is reasonable to view that the person who acquired the right to grave base by prescription should pay the rent from the date on which the landowner claims the rent for the grave base.

A) In the Joseon Dynasty, an individual’s ownership was not recognized with respect to forests and fields, the graves of which are mainly installed in accordance with the principle of public ownership of forests. While modern forest ownership system was formed through the Japanese colonial era, the community members’ awareness of rights to forests and fields was rarely nonexistent or very low, and the economic value of forests and fields was weak. Meanwhile, notwithstanding the traditional funeral culture centered on burial, most people, who did not own land for which graves were installed, did not have to bury a corpse in other people’s forests and fields.

In the traditional large family system and agriculture-oriented society, depending on the definition between neighbors, a large number of cases where a grave was installed with the explicit or implied consent from the owner of the forest and land, but there were very rare cases where evidentiary materials, such as a written contract, were left. Even if the landowner did not explicitly consent to the installation of a grave, there were many cases allowing the gratuitous use of the forest and land in consideration of the value of the forest and the special characteristics of the grave. However, there were many cases where it is impossible for the landowner to prove the landowner’s consent at the beginning of 60 years. The customary law on the prescriptive acquisition of the right to grave base, which has been consistently applied by the Supreme Court for 60 years prior to and after the enforcement of the Civil Act, was resolved, and the fact-finding relation surrounding the existing grave may be respected so that the grave may become a grave (see the en banc Decision 2017, supra).

B) Considering the historical and social background and purport of the customary law on the prescriptive acquisition of the right to grave base, the right to grave base should be respected in recognizing the obligation to pay the rent to the person holding the right to grave base, thereby protecting the interests of the landowner and the trust and legal stability of the person holding the right to grave base harmoniously.

Under the premise that a person who installed a grave on his/her own land is liable to pay the rent when he/she acquires the right to grave base by transferring the land, the Supreme Court: (a) held that the person who installed the right to grave base delays the payment of the rent for a considerable period of time after the judgment on the rent became final and conclusive; and (b) where the delayed rent is more than two years, Article 287 of the Civil Act may apply mutatis mutandis to the claim for the extinction of the right to grave base (see, e.g., Supreme Court Decision 2015Da206850, Jul. 23, 2015). Unless there are special circumstances, the same

However, if it cannot be proven that the landowner at the time of the installation of a grave permits the person who acquired the right to grave base by prescription to pay all the subsequent rent retroactively from the time of the installation of a long-term grave, the right to grave base should be paid in lump sum upon a claim by the landowner for the determination of rent, and if the right to grave base does not pay it within a reasonable period, the right to grave base itself terminates upon the landowner’s claim for extinction. This result is difficult to view that the prescriptive acquisition of the right to grave base is recognized by the customary law to respect past facts over the long-term period of time in respect of the grave under the historical and social background as seen earlier, and to promote legal stability, it is difficult to view that the prescriptive acquisition of the right to grave base is still maintained as a legal norm in the en banc decision in 2017.

C) While the right to grave base is a real right similar to a superficies, it is recognized on the basis of the ancestor worship of the Korean people and tradition and custom unique to our society, and the content of the right does not coincide with superficies under the Civil Act until the occurrence, extinguishment, change, etc. of the right is not identical to superficies under the Civil Act. The right to grave base for prescriptive acquisition is consistent with the rationale for the existence of a prescription system to maintain a continuous social order for a certain period of time and seek relief from preservation that is difficult due to the passage of time, and exclude a person who does not exercise his/her right for a long time from legal protection. As such, the scope of the obligation to pay rent

In light of the special nature of the right to grave base, the Supreme Court did not apply the legal doctrine on real rights under the Civil Act as it is. In bad faith, the Supreme Court did not recognize the prescriptive acquisition of ownership (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997). In addition to the fact of possession for recognition of the prescriptive acquisition of superficies, it should be objectively indicated that the possession of superficies as a superficiary should exist (see, e.g., Supreme Court Decision 96Da7984, Dec. 23, 1996). However, regarding the prescriptive acquisition of the right to grave base, the Supreme Court held that the right to grave base may be acquired by extinctive prescription in cases where the grave was installed without permission of the landowner (see, e.g., Supreme Court Decisions 200Da539, Oct. 31, 1957; 201Da630174, Nov. 10, 2011).

D) In a case where both the sexual law or customary law that serves as the basis for a trial does not exist with respect to a certain case, a judge shall render a trial in accordance with the reasoning of the trial (Article 1 of the Civil Act). The cooking is generally understood as the dualism of things, the intrinsic rule, etc., or is based on a person’s interest or form with emphasis on the social meaning, and is also interpreted as a norm of community life, the general principles of law, social feasibility, equity, justice, etc. In addition, the exercise of rights must be in good faith (Article 2 of the Civil Act). In addition, the principle of trust and good faith should not be exercised or performed by a party to a legal relationship in consideration of the other party’s interest in terms of the content of the other party’s interest, the right or obligation to exercise or perform, the correlation between the other party’s interest and the other party’s trust, and the other party’s validity of trust (see, e.g., Supreme Court Decision 87Meu2407, May 9, 1989).

Article 286 of the Civil Act provides that when the rent is not reasonable due to changes in the price of the land or any increase or decrease in taxes or burdens on the land, the parties concerned may request an increase or decrease in the rent. Not only superficies but also chonsegwon (Article 312-2 of the Civil Act) and lease (Article 628 of the Civil Act). However, according to each of the above provisions, even if the rent was not reasonable due to changes in the price of the land due to changes in the price of the land, the effect of increase or decrease in the rent is not immediately accrued when the circumstances change without the party’s claim, and it does not mean that the parties can claim the rent retroactively from the time when the circumstances change. This is based on the sound reasoning and the principle of trust and good faith in relation to the continuous use of the goods. However, the parties’ claim for an increase or decrease in the rent to the other party, thereby regulating the effect of increase or decrease in the rent to the future, thereby ensuring the legal interest and stability of the parties who

In addition to the above reasoning, the good faith principle, and the fundamental purport of each of the above legal provisions, in a case where the person holding the right to grave base acquired by prescription the right to grave base by occupying the grave base for a long time without the landowner’s objection, without paying any compensation, it should be deemed that the person holding the right to grave base bears the obligation to pay the land from that time when the landowner files a claim for the

C. Unlike a change in precedents, Supreme Court Decision 92Da13936 Decided June 26, 1992 and Supreme Court Decision 94Da37912 Decided February 28, 1995, etc. that held that the right to grave base should not be paid by the person holding the right to grave base when acquiring by prescription the right to grave base at the same time as the right to grave base comes into existence, shall be modified to the extent inconsistent with the opinion of this decision.

3. Determination on the instant case

Based on the factual basis of the above 1. A., on the premise that the Defendant, even if he acquired the right to grave base by prescription, was liable to pay the rent for the grave base at least from the time when the landowner claimed the rent, the lower court determined that the Defendant was liable to pay the Plaintiffs the rent corresponding to the Plaintiffs’ share ratio from the day following the date of delivery of the copy

Such determination by the lower court is justifiable in accordance with the legal doctrine as seen earlier. In so determining, the lower court did not err by misapprehending the legal doctrine on the prescriptive acquisition-type right to graveyard, contrary to what

4. Conclusion

Therefore, all appeals are 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, Kim Jae-hyung, and Lee Dong-gu, the separate opinion by Justice Lee Ki-taik, Justice Lee Jae-chul, Justice Lee Dong-won, and Justice Lee Dong-won, the dissenting opinion by Justice Park Sang-ok, Justice Min You-sook, Justice Noh Jeong-hee, and

5. Concurring Opinion by Justice Lee Ki-taik, Justice Kim Jae-hyung, and Justice Lee Dai-gu as to the point of occurrence of land rent

A. Summary of the separate opinion

The Majority Opinion states that when the right to grave base is acquired by prescription, the landowner is obligated to pay rent to the landowner from the date of the claim when the landowner claims for rent on the grave base.

In the event of prescriptive acquisition of the right to grave base, I agree with the Majority Opinion that the landowner should pay rent to the landowner. However, I oppose the part that the obligation to pay rent arises from the time of the landowner’s claim for rent. In the event of prescriptive acquisition of the right to grave base, the landowner of the right to grave base shall be deemed to have the obligation to pay rent during the period for the landowner’s possession of the grave by installing the grave, and it shall not be deemed that the obligation to pay rent arises only from the time when the landowner’s claim for rent is made. However, in the instant case that only the Defendant appealed, this issue does not affect the conclusion of the

First, after examining the reasons why the right to graveyard is recognized, it is necessary to pay the rent from the time of the installation of the grave to present the basis that the rent should be considered to occur.

B. Even if the right to grave base is recognized, it is permitted to use a grave on another person’s land without paying any consideration?

Unless there exist special circumstances, such as an agreement between the parties to use a grave, namely, a graveyard, as a right to use the land on another’s land, it accords with the overall legal order to regard the right to grave base as a consideration for the said land, barring any special circumstance. The Constitution guarantees all citizens’ property rights, and the contents and limitations thereof are to be determined by Act (Article 23(1) of the Constitution). The ownership is the most typical property right

A right to dispose of profits (Article 211 of the Civil Act). The owner, as a remedy for infringement of ownership, claims the return of the article against the person who occupies the article without a legitimate title (Article 213 of the Civil Act). A person who interferes with or is likely to interfere with the ownership by any means other than possession, may demand the removal of the disturbance or prevention thereof (Article 214 of the Civil Act). In addition to the right to claim a real right, the owner may claim a return of unjust enrichment against the profits gained from the possession or use of the article (Article 741 of the Civil Act). The owner may also claim a tort against the person who caused damage to the owner by the infringement of ownership (Article 750 of the Civil Act). As such, the ownership is a right to directly and exclusively control the article, and is an absolute right or a hostile right

In a case where land is used by another person, it is common to agree to pay the price for the use of land, such as rent and land rent. It is also possible for a landowner to establish superficies or enter into a loan agreement for use without compensation, but this is most cases where the landowner and the occupant have a special relationship with each other, and it cannot be said that it is common to use land of another person without compensation if not, in general.

In light of the principle of property right guarantee under the Constitution, the content and effect of ownership under the Civil Act, and the ordinary transaction concept, barring special circumstances, such as where the possessor uses another person’s land for himself/herself, it shall be deemed that the possessor has to pay the price for the use of land, unless there exists an agreement between the parties.

In the case of statutory superficies, right to passage over surrounding land established under the provisions of law or customary law, and right to passage over land acquired by prescription, the Civil Act (proviso to Article 366 of the Civil Act, Article 219 of the Civil Act, and Article 219 of the Civil Act) or the Supreme Court rulings (Supreme Court en banc Decision 2012Da17479 Decided March 20, 2015) are based on these concepts, which do not follow an agreement between the parties, that the land user should pay compensation, such as land rent, compensation for damage, etc., to the landowner (see, e.g., Supreme Court en banc Decision 2012Da17479, Jan. 12, 200). It can be understood in the same context that the Act on Funeral Services, etc. strengthened the landowner’s rights in the legal relationship on graveyard from January 13, 201 (see, e.g., Articles 23(1) and 23(3)).

The Supreme Court Decision 92Da13936 delivered on June 26, 1992 ruled that, even if the right to the graveyard was acquired by prescription for the same purport, barring any special circumstance, the landowner has the obligation to pay the land to the landowner, and the obligation arises at the same time as the right to the graveyard is established. It may be deemed that the natural logic that the payment of the price should be made in the case of using another person’s land can be applied to the right to the graveyard by prescription. The Supreme Court Decision 94Da37912 delivered on February 28, 1995, which rendered on June 28, 1995, ruled that, in light of the fact that the payment of the land rent is not an element, and thus, it is reasonable to interpret that the payment of the land rent is unnecessary to pay the land rent. This decision applied the legal principle on the prescriptive acquisition of the right to the graveyard by prescription as it is without agreement between the parties, and thus, cannot be applied as it is.

In the case of the right to grave base for prescriptive acquisition, two Supreme Court rulings have different judgments as above on whether the obligation to pay the land rent exists, and in principle, the attitude of the Supreme Court decisions in 1992, which affirmed the obligation to pay the land rent, should be maintained and maintained. The above decision of the Supreme Court in 195 should be discarded.

C. When the land rent arises from the prescriptive acquisition on the right to grave base?

1) The right to grave base is, in principle, a right to install a grave, namely, a graveyard on another person’s land to use the land, and ought to be deemed as compensation from the time of installation of the grave. The majority opinion argues that the right to grave base is based on the premise that the prescriptive acquisition-type right was no longer free of charge until the landowner files a claim for the rent, and that the landowner is not obliged to pay the rent until the landowner claims the rent. However, there is no ground to view it from the time of installation of the grave to the time of the landowner’s claim for the rent without compensation.

2) First of all, in recognizing the obligation to pay the rent to the person holding the right to grave base, the following is arranged by referring to the legal principles on superficies or statutory superficies as to how the legal relationship on the land rent will be formed.

The specific amount of the land rent may be determined by the court upon the party’s request (proviso of Article 366 of the Civil Act). If the land rent determined as above is unreasonable due to a change in economic conditions, such as increase in the land price, the party may claim an increase or decrease in the land rent (Article 286 of the Civil Act). In principle, the ten-year extinctive prescription for the land rent claim is applied to the land rent claim (Article 162(1) of the Civil Act). However, if the land rent claim was determined by a consultation between the parties for a period of less than one year, the three-year short-term extinctive prescription (Article 163 subparag. 1 of the Civil Act), and if determined by the court’s decision, the ten-year extinctive prescription takes place (Article 165(1) of the Civil Act). If the land owner fails to pay the land rent for more than two years, the land owner may claim for the extinguishment of the right to grave base (Article 287 of the Civil Act). However, the land owner cannot be deemed to have paid the land rent for more than two-year.

Until now, there is no particular difference between the majority opinion and the concurring opinion recognizing the obligation to pay the rent to the person holding the right to grave base. The difference between the majority opinion and the concurring opinion arises when the obligation to pay the rent arises, i.e., when a grave is installed, or when the landowner claims the rent.

3) The above legal relationship on the land rent for the right to grave base is an alternative consequence by applying the Civil Act on superficies or statutory superficies to the right to grave base. Likewise, the time when the obligation to pay the land rent for the right to grave base arises should be resolved by applying the Civil Act by analogy to the Civil Act.

The right to grave base plays an excessive role in cultivating the gap between the traditional ancestor worship and the modern land ownership system. The Supreme Court has served as a customary law, but the Supreme Court does not confirm the customary law existing in the society at the beginning, but in fact combines the modern system of prescriptive acquisition with the customary right to grave base established when the landowner’s consent is obtained. It is clear in that the requirement “20-year prescriptive period or “an ordinary and public possession.” It is no choice but to be derived from the requirements for prescriptive acquisition under the Civil Act. Therefore, the prescriptive acquisition of the right to grave base should be deemed as applying or analogically applying the regulation on prescriptive acquisition of property right to the customary right to the customary right to grave base. Accordingly, the right to grave base has the character of the customary law rather than the customary law of the original meaning.

Even if the right to grave base established upon the completion of prescriptive acquisition is a real right under the customary law, it cannot be deemed that the customary law has been established as to the specific contents of the right to grave base, such as whether the right to grave base is liable for the payment of the rent, when the time of its occurrence, when it is necessary to determine the rent by the court, and whether the right to grave base is extinguished due to the increase or decrease of the rent, the right to grave base due to the unpaid payment of the rent. In particular, as seen in the above B. In the case of the right to grave base in the Supreme Court decision, there are several decisions in 192, in which the right to grave base has the obligation to pay the rent from the time of its establishment, and in

If there is a defect in legal provisions, the court may, by applying mutatis mutandis the legal rules on similar matters, supplement the defect of legal provisions. To such analogy, there should be a common point or similar point between a case without any legal regulations and a case with a legal regulations. In light of the legal system, legislative intent and purpose, etc., it should be evaluated that analogical application is justifiable (see, e.g., Supreme Court Decision 2019Da226135, Apr. 29, 2020). Even if a right is recognized as a customary law, even if there is no custom concerning the specific contents thereof, or where it is impossible to approve as a customary law, the content of the right may be supplemented by analogical application of the legal rules on similar matters.

It is the most important legal norm to supplement the specific contents of rights under the customary law. Article 1 of the Civil Act sets the order of courts concerning civil affairs in the order of law, customary law, and cooking, which may also be applied in a situation where the contents of rights under the customary law should be supplemented. Moreover, the law enacted to reasonably regulate legal relations is a norm that has obtained the legal approval of the members of society and has "legal convictions or legal perceptions of the members of the society" required under the customary law. Therefore, in order to supplement the contents of rights under the customary law, it is necessary for the court to find out the provisions of the sexual law that are applied first to a similar case, and to seek a solution for the problem by analogy.

Pursuant to the intrinsic rules of an object, the intention of an object, or a norm considered by a human nature, etc., rather than having a certain content, it is extremely abstract, which may be drawn up if deemed most appropriate in light of the overall legal order or the spirit of passage of its affiliation, and may appear as the basis of a trial only when there is no law or customary law that can serve as the basis of a trial. The law is a legal norm approved by the legislators by embodying the cooking in the form of a provision in order to reasonably regulate social relationship. Since the law serves as the basis of a trial prior to the preparation, if the customary law is defective, it may be resolved through analogical application of the law, but should not be determined differently on the ground of an abstract

The previous Supreme Court en banc Decision 2007Da27670 Decided November 20, 2008 or the Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 concerning the qualifications of the members of a clan was supplemented based on the cooking of matters that have no customary law. However, the above decisions could not be resolved through analogical application of the law, since there was no provision on the sexual law regarding matters similar to the pertinent issue, it can be deemed that there was no choice but to be decided based on the cooking.

In this case, since there is a provision of the law on similar matters, the above cases are different from those of the Supreme Court.

If there is no content prescribed as the customary law with respect to the land rent for the prescriptive acquisition right, the legal norm on similar cases shall apply mutatis mutandis. The right to grave base is a real right similar to a superficies that can use another person’s land, and is established under the customary law without any agreement by the parties. The form most similar to the land use relationship is the legal superficies. In accordance with Article 366 of the Civil Act, etc., the superficies shall pay rent to the landowner from the time when the superficies is established. As for the land use relation that is established by prescriptive acquisition of the right to grave base, as in the case of statutory superficies, the right to grave base should be paid from the time when the right to grave base is established (see, e.g., Supreme Court Decision 2012Da17479, supra, Supreme Court Decision 2012Da17479, supra). However, the right to grave base ought to be held retroactively as at the time when the owner of the dominant land starts to possess the grave upon the completion of the prescriptive acquisition of the right to grave base (see Articles 247(1 and 248).

The Majority Opinion, based on the cooking and the good faith principle, determines the time when the obligation to pay the rent arises differently from the legal superficies. In particular, the Majority Opinion applies mutatis mutandis to the recognition of the obligation to pay the rent, the determination of the rent, the right to increase or decrease in the rent, and the claim for extinguishment of superficies or statutory superficies in a manner that does not have any basis under the Civil Act based on the cooking and the good faith principle. As such, in any case to the legal relationship concerning the rent, the Civil Act is an excessive commission to apply the provisions of cooking and the good faith principle to any case. Even if the issue of this case is determined based on the cooking, it is difficult to conclude that the period from the installation of a grave to the completion of the prescriptive acquisition by the landowner, and one of the various points from the time when the landowner claims the rent, or the time when the judgment determining the rent becomes final and conclusive. Even if the right to the right to the graveyard was established, the other party’s obligation to pay the rent at the time of the other party’s claim for the payment of the rent does not have any legal basis.

4) When a grave is installed on another person’s land without permission, the obligation to return unjust enrichment following the use of the land or liability for damages arising from tort occurs, and the prescriptive acquisition of the right to grave base shall be deemed to occur from the time of the installation of the grave, in that it takes place under such obligation.

When it is proved that the landowner and the installer of a grave have agreed on or consented to the use of the grave base, the existence and amount of the cost of use shall be determined by the agreement, etc. and the prescriptive acquisition of the right to grave base may not be an issue. The prescriptive acquisition of the right to grave base may be divided into two parts in cases where a grave is installed without the landowner’s permission, or where it is not revealed whether the agreement or consent exists due to the passage of time,

First, in a case where a grave is installed without the landowner’s permission, possession during the prescriptive period constitutes an illegal possession. It is evident that a grave owner has to excavate a grave upon the landowner’s request, and even in that case, the grave owner bears the duty to return unjust enrichment during the period of possession of the grave base. There is no difference in view of the fact that the grave owner’s return of unjust enrichment is recognized before the prescriptive acquisition of the right to grave base is completed. As can be seen, this cannot be deemed a gratuitous use relationship in that the grave owner is obliged to return the land to the landowner prior to the completion of the prescriptive acquisition of the right to grave base. Even if the grave owner is practically liable for the return of unjust enrichment, it is merely a grave owner’s failure to perform the duty to return unjust enrichment. In this context, whether the landowner actually claims the return of unjust enrichment to the grave owner does not affect the establishment

If the prescriptive acquisition of the right to grave base is completed after the expiration of the 20-year prescriptive period, the grave owner may no longer file a claim for the excavation of the grave as a result of the grave owner’s acquisition. However, such prescriptive acquisition ought to be deemed to take place at “the state in which the grave owner is obliged to return benefits arising from the use of land,” like before that time. The effect of prescriptive acquisition is retroactive to the commencement of possession of the grave by installing the grave (Articles 247(1) and 248 of the Civil Act) as a result of the retroactive effect of the prescriptive acquisition from the time of the commencement of possession of the grave (see Articles 247(1) and 248 of the Civil Act). As such, it

The purpose of recognizing the prescriptive acquisition of the right to grave base under the customary law is to enable a grave to continue to exist for the purpose of improving the number and urnment of the grave. It is no reason to view that the purpose of recognizing the prescriptive acquisition of the right to grave base is to exempt any occupant of the grave from the obligation to return unjust enrichment that has already occurred during the prescriptive period, or to convert the relationship that had already been paid for using the grave to the usage relationship without compensation. Even if the prescriptive period has expired after the installation of the grave, the right to grave base should be deemed to have been

Then, it cannot be viewed differently in cases where it is unclear whether there was an agreement or consent with the landowner. In cases where the landowner exercises a real right claim based on the ownership, a claim for return of unjust enrichment, or a claim for damages arising from a tort, the burden of proof on the fact that the landowner has a legitimate right to possess and use, i.e., the landowner’s right to claim for return of unjust enrichment, or a claim for damages arising from the tort lies in the occupant.

The Majority Opinion argues that the prescriptive acquisition of the right to grave base was to relieve any difficulty in proof in the past when the landowner accepted or knowingly accepted the permission for free use of a grave in a forest and field, and that deeming that the person holding the right to grave base is liable for the payment of the rent is not consistent with this purport. However, there is no ground to deem that the possession of a grave is presumed to be a lawful possession based on the landowner’s consent, or that the burden of proof of the right to occupy and use the grave is converted into the landowner. Whether the landowner has given the landowner’s consent or not is a matter of recognition of fact or interpretation of intention by taking into account various circumstances, such as the location and circumstance of the grave where the grave was installed, the relationship between the establisher of the grave and the landowner at the time of the installation of the grave, the relationship between the landowner and the landowner at the time of the installation of the grave, and apart therefrom, if the landowner did not prove the existence of the landowner’s consent or permission (in this case, the prescriptive acquisition is not problematic).

5) It cannot be deemed that the duty to pay the rent to the person holding the right to grave base differs depending on whether the landowner claims the rent. It is very vague and natural in our legal order that the landowner’s obligation to pay the rent not only arises when recognizing the landowner’s claim for the rent against the person holding the right to grave base, but also arises from the landowner’s claim.

A claim for performance is based on the premise of the existence of a right and an obligation. A claim for performance, which is one of the remedy against a claim, may not be objectively explained. A claim for performance, which is one of the remedy against a claim, is premised on the establishment of a claim and an obligation. In other words, Article 387(2) of the Civil Act provides that “if the period for the performance of an obligation does not exist, the obligor shall be liable for delay from the time of the receipt of the request for performance.” This is based on the premise of the existence of a joint and several obligation. The claim for performance against a joint and several liability stipulated under Articles 414 and 416 of the Civil Act is premised on the existence of a joint and several obligation. A claim for increase or decrease of rent (Article 286 of the Civil Act), a claim for increase or decrease in rent (Article 312-2 of the Civil Act), or a claim for increase or decrease in rent (Article 628 of the Civil Act) or a claim for increase or decrease in rent (Article 628 of the Civil Act), rather than a change in economic situation.

The claim for the rent against the landowner on the right to grave base is derived from the land ownership, but the landowner may not claim for the payment of the rent in the absence of the claim for the rent.

Since the claim for the payment of the rent can be made on the premise of the establishment of the claim for the payment of the rent, the time of the occurrence of the rent is irrelevant to the claim for the payment.

The Majority Opinion’s conclusion that, while using another’s land without permission for the installation or maintenance of a grave, the obligation to return unjust enrichment and the obligation to compensate for losses arising from a tort occurred, such obligation ceases to exist due to the prescriptive acquisition of the right to grave base, and that the land owner’s demand for the performance of the right to grave base would incur

6) From the time of the installation of a grave, deeming that it is liable to pay a rent would threaten the continuation of a grave or undermine its legal stability.

The Majority Opinion states that, upon a landowner’s claim for the land rent, payment shall be made to the previous land rent, and delay, if the right to grave base itself becomes extinct, it would undermine legal stability and would not be consistent with the purport of recognizing the prescriptive acquisition of the right to grave base.

However, the extinctive prescription of a claim for the rent is applied, and accordingly, the rent to be paid by the grave owner at any time when the grave was installed is limited to the maximum of 10 years. The grave base is most forests and fields, and the right to grave base is limited to the extent necessary to attain the purpose of protecting and wing a grave, and thus, it appears that the total amount of the rent would not be much significant, taking into account the ten-year portion of the rent. As seen in the above Section c. 2, the right to grave base may not be deemed to have delayed the payment of the rent until the land owner files a claim for the decision of the rent with the court and the amount of the rent becomes final and conclusive by the decision. As can be seen in the above Section c. 2, the right to grave base cannot be deemed to have delayed the payment of the rent until a considerable period after the decision became final and conclusive. Accordingly, even in a case where the right to grave base owner lacks economic ability to pay the rent, the landowner may file a claim for the extinction of the right to grave base.

As such, it cannot be deemed that the right to grave base is unfairly disadvantageous to the landowner on the ground that the landowner recognizes the obligation to pay the rent for the period before the landowner claims the rent, and the situation where the right to grave base ceases to exist on a large scale as the Majority Opinion concerns.

D. We examine the instant case.

One of the instant graves was 1940, and the other was installed in the instant forest in around 1961, and the prescriptive acquisition of the right to grave base was completed in 1960 and around 1981, respectively. The Plaintiffs acquired co-ownership shares in the said forest and field around 2014.

In light of the above legal principles, the Defendant is obligated to pay the land rent after the date of acquisition of the Plaintiff’s ownership as requested by the Plaintiffs. Nevertheless, the lower court erred by deeming that the Defendant was obligated to pay the land rent from the time when the Plaintiffs claimed the land rent, thereby accepting only part of the Plaintiff’s claim. However, in the instant case where only the Defendant appealed, the lower judgment cannot be changed disadvantageously to the Defendant, and thus, the Defendant’

For the same reason, the majority opinion and the appeal are dismissed. However, the majority opinion and the reasons are different from the majority opinion, and I express my separate opinion.

6. Dissenting Opinion by Justice Ansan-chul and Justice Lee Dong-won

A. The Majority Opinion holds that, where the right to grave base, which is a real right under the customary law, has been acquired by prescription, the right to grave base owner is obligated to pay the rent from the date of the claim, if the landowner claims the rent for the

However, the previous Supreme Court Decision 94Da37912 Decided February 28, 1995, which denied, in principle, the obligation to pay the rent to the landowner on the prescriptive acquisition-type graveyard (hereinafter referred to as “the prescriptive acquisition-type graveyard”) shall be valid and maintained, and there is no assent to the majority opinion to modify it. The reasons are as follows. The Supreme Court Decision 94Da37912 Decided February 28, 1995, which denied, as a matter of principle, the obligation to pay the rent to the landowner on the prescriptive acquisition-type graveyard (hereinafter referred to as “the prescriptive acquisition-type graveyard”) should be maintained.

1) Since the right to grave base is a real right under the customary law, it is not reasonable that the content of the customary law should be declared through the investigation or confirmation of the customary law, and the court determines its content through interpretation.

A) The Majority Opinion, on the premise that the right to grave base may be determined by the court as to whether the right to grave base is either for or without consideration, ought to be viewed as compensation in order to coordinate the interests of the parties.

The customary law means that social norms created through repeated practices of the society are approved and enforced as legal norms through the legal conviction and recognition of the society, and have the same effect as the statutes. The right to grave base is a real right recognized as such customary law, and the content of such right is also determined in accordance with the customary law. Therefore, the court must investigate and confirm whether the custom on the right to grave base exists and whether there is a custom on the land rent, and on the legal conviction of the members of the society, and declare what is the contents of the customary law. As the majority opinion states, setting the contents of the right to grave base through legal interpretation without undergoing a proper investigation and confirmation on the customary law is contrary to the nature and nature of the right under the customary law as seen earlier, and is against the nature and nature of the right under the customary law, and without the court’s endeavor to confirm the contents of the customary law

B) The fact that no custom, the content of which is the value of the right to grave base, has been confirmed so far, is against the custom that the right to grave base was customary free of charge. It is reasonable to deem that the right to grave base had not been urged for a fee due to the custom being free of charge, and on the contrary, deeming that there had not been a symbol for a fee as a matter of custom, is not an argument by the legal professionals.

In addition, in light of the purport and background of recognizing the prescriptive acquisition of the right to grave base as seen below 2, deeming the right to grave base to have been a customary free of charge accords with a natural and sound common sense.

The above Supreme Court en banc Decision 94Da37912 held that there was no obligation to pay the rent when acquiring the right to grave base by prescription, and the above decision has played a role as a precedent of the Supreme Court, such as admitting the obligation to pay the rent from the time when the decision was made frequently known to the lower court. On the other hand, the Supreme Court Decision 92Da13936 Decided June 26, 1992, which affirmed the obligation to pay the rent from the right to grave base, cannot be deemed to have been the previous interpretation of the Supreme Court. The Supreme Court en banc Decision 2017 Decided 2017, comprehensively discussed whether the prescriptive acquisition of the right to grave base was valid after the enforcement date of the Funeral Act, and the Supreme Court made it clear that this is still a valid customary law. Although the above en banc Decision did not explicitly state whether the right to grave base is liable to pay the rent to the person to the right to grave base, it should be deemed that it had been recognized by the previous Supreme Court en banc Decision 94Da37912 Decided, which had not explicitly known the content of the right to the right to the right.

Nevertheless, as to the contents of rights under the customary law accepted as such, it is inconsistent with the Majority Opinion’s conclusion that it is necessary for the landowner and the person having the right to grave base to change precedents on the grounds that there is a need to coordinate the interests between the landowner and the person having the right to grave base.

C) Even if the en banc Decision in 2017 did not clearly state whether the content of the right to grave base is for value or free of charge under the customary law, there is a need and justification to change the precedents maintained up to the present. However, no material exists that accords with the fact that the right to grave base exists for value, and deeming that the right to grave base has no obligation to pay the rent to the person who has the right to grave base as seen in paragraph (2) is reasonable in light of the legal interpretation or sound common sense. Therefore, the Majority Opinion that seeks to change the previous Supreme Court Decision is unreasonable.

2) In light of the general legal principles on superficies, differences between the right to grave base and the statutory superficies, and the purport of recognizing prescriptive acquisition of the right to grave base as a customary law, it cannot be deemed that the right to grave base is liable to pay the land

A) In principle, superficies cannot be claimed unless there is an agreement on land rent. Even if there is an agreement on land rent, it shall be registered only to a third party, and if it is not registered, a claim for land rent increase shall not occur as a gratuitous superficies (see, e.g., Supreme Court Decision 9Da24874, Sept. 3, 199). This is clearly distinguishable from the lease (Article 618 of the Civil Act) which is established as a requirement for the following establishment. Accordingly, the right to use land of a third party is not derived immediately from the nature that the superficies is the right to use land of a third party.

As to the right to grave base, which is a right under the customary law similar to superficies, cannot be deemed as an essential requirement for the right. Since the right to grave base is established and continued without registration, there is no way to publicly announce the rent. Nevertheless, there is no legal basis to deem that the obligation to pay the price for the land use upon the landowner’s request after the prescriptive acquisition of the right to grave base is completed.

B) Even according to the Majority Opinion, since the land owner’s claim for the rent is for payment from the date on which the land owner claims the rent, the right to grave base in itself without the claim for the rent appears to be premised on

For instance, it is difficult to find a legal principle to support the change of the content of a right, such as the change of a gratuitous legal relationship into a paid legal relationship due to a claim by a right holder, except in exceptional cases such as where the abstract claim for performance is converted into a specific right to receive a benefit, the fulfillment of the condition of a conditional right, the maturity of the time limit, or the exercise of a right to form a contract. If there is no time limit for performance, the obligor is liable for delay from the time when the claim for performance is filed (Article 387(2) of the Civil Act). This is merely a matter of a delay liability,

Ultimately, according to the Majority Opinion, the legal relationship on the rent of the right to grave base is converted into a compensatory legal relationship by the landowner’s unilateral declaration of intent, which is understood as granting the landowner the right to form a kind of right. However, the right to form cannot be recognized without any express provision of the law, and there is no relevant provision in our law and no such custom may be verified at all. The Majority Opinion presented as a basis for cooking, the good faith principle, or the provision on the right to claim an increase or decrease of rent under Article 286 of the Civil Act, but cannot create a formation right based on abstract cooking or the good faith principle. The right to claim an increase or decrease of rent under Article 286 of the Civil Act is not applicable in the case of a superficies without compensation as a provision on superficies with a payment obligation (see, e.g., Supreme Court Decision 9Da24874, Sept. 3, 199). It is unreasonable to apply Article 286 of the Civil Act to the right to grave base without any specific ground to form a new right.

As the Majority first recognized from the starting point of the discussion, the right to grave base is free of charge, and there is no ground for converting it into compensation. It is desirable to reasonably coordinate the interests between the parties to a legal relationship, but it is necessary to make a new legal principle for this purpose. The content of the right to grave base, which was free of charge, is continuously maintained without compensation.

C) Unlike superficies under the agreement between the parties, the Majority Opinion pointed out that the obligation to pay the land for the owner of the legal superficies is recognized as to the legal superficies. However, there are explicit provisions such as Articles 305(1) and 366 of the Civil Act. The Supreme Court has recognized the obligation to pay the land for the legal superficies under the customary law. This is because the right is deemed similar to the legal superficies under the Civil Act, and the provision on the legal superficies is applied mutatis mutandis (see, e.g., Supreme Court Decision 93Da10781, Jun. 29, 1993).

While the right to grave base is a real right similar to a superficies, there exist many differences from the legal superficies in terms of the content, method, duration, etc. of the right. The right to grave base holder is only able to use another person’s land to the extent necessary to protect and serve a grave, and the content and scope of that right is more limited than superficies under the Civil Act. In addition, the right to grave base is recognized only when it has a form that enables recognition of the existence of a grave from outside, such as a bed, such as a bed portion, and it is not recognized if it does not have an external form that can objectively recognize the existence of a grave, and the right to grave base is established without registration (see, e.g., Supreme Court Decision 96Da14036, Jun. 14, 1996). Furthermore, the term of the right to grave base is maintained for a period when the right holder continues to provide care and service for a grave and continue to exist (see, e.g., Supreme Court Decision 81Da1220, Jan. 26, 1982).

As such, since the right to grave base, which is a real right under the customary law, is clearly different from the legal superficies, it is reasonable to apply the legal doctrine on the legal superficies as it is to the right to

D) The agreement on the use of land between the landowner and the grave installer at the time of the installation of a grave shall take precedence over others, and the prescriptive acquisition of the right to grave base is not an issue. For a period of time, even if the prescriptive acquisition of the right to grave base is completed when the landowner pays rent to the landowner, the person to the right to grave base shall be deemed to have prescriptive acquisition of the right to grave base at a cost, i.e., in the state of payment of rent. However, in most cases of the right to grave base acquired by the prescriptive acquisition of the right to grave base, the party to the

As mentioned in the en banc Decision in 2017 and the Majority Opinion, in Korea, under the historical background, such as the past principle of the sharing of forests and burial-centered funeral culture, the characteristics of graves that are the object of religious worship, the normative awareness of the worships and the traditional sense of values, where the definition between neighbors was neglected, there were many cases where a grave owner installs a grave and uses the base without compensation under the explicit or implied permission of the forest owner. However, it is practically impossible to prove that there was the landowner’s consent if there was a dispute over the grave base due to the lapse of time and the change of the owner of the land or the grave.

The purpose of the statute of limitations is to maintain a social order in which it has been continued for a certain period of time, to seek relief from the preservation of evidence difficult due to the passage of time, and to exclude a person who does not exercise his/her right for a long period of time from legal protection. In particular, legal stability is the most important ground to support the statute of limitations. The purport of recognizing the prescriptive acquisition of the right to grave base as a customary law is to promote legal stability by protecting the social order regarding the graves formed on the basis of facts that have been continuously continued for a long period of not less than 20

In light of the background and purport that the prescriptive acquisition of the right to grave base has been recognized as the customary law, it is natural to view that, if the possession of the grave base continues for a long time for not less than 20 years without any payment or demand of the land, the landowner has implicitly permitted the use of the land by the landowner’s free right to grave base, or at least the said person has occupied the grave base with the knowledge of such fact. Accordingly, the right to grave base should be deemed to have acquired the right to the same content as the right that continues for the prescriptive period, i.e.

The logic of the Majority Opinion that this was changed for consideration after acquiring the right as a result of the completion of prescription even when the period of prescription begins, is an interpretation that does not fit the purport of the prescription system to protect the social order that has been continuously continued for a long time as a legal right. The Supreme Court Decision 2012Da17479 Decided March 20, 2015, supra, stated in the Majority Opinion, held that the owner of the dominant estate should compensate for the damages suffered by the owner of the dominant estate due to the construction and use of the road when the passage area was acquired by prescription. However, the said judgment considered that the passage area is similar to the passage area right of the surrounding land and Article 219(2) of the Civil Act provides for the compensation obligation to the owner of the surrounding land. The right to graveyard is a customary right under the common law, and its nature or establishment is entirely different from the passage area of the passage area under the Civil Act or the right to passage over the surrounding land, and in the case of the passage area, the use value of the land installed against the ordinary contribution and building site is low, and thus it should not be applied in view.

3) Even if the obligation to pay the rent on the right to grave base is denied, it does not infringe on the property rights of the landowner guaranteed under the Constitution or violate the overall legal order.

A) The recent Constitutional Court Decision 2017HunBa208 Decided October 29, 2020 determined that the above customary law does not violate the Constitution by clearly stating that the prescriptive acquisition of the right to grave base under the customary law does not infringe on the landowner’s property right. The above decision of the Constitutional Court, even if the right to grave base is acquired by prescription, does not violate the Constitution. The restriction on property rights of the landowner, such as the extinction of the right to grave base, is limited to the extent necessary for the protection and management of the grave. If the right to grave base is recognized and the protection of the grave is suspended, the restriction on property rights of the landowner, such as the extinction of the right to grave base, is limited to the scope. If the right to grave base is recognized, the right to grave base is recognized to demand the extinguishment of the right to grave base or the removal of the grave on the ground of the late payment of the rent or the expiration of the period, so it is inevitable that the level of the right to grave base security would be set back as soon as possible, making

As the Constitutional Court has properly decided, it cannot be deemed that the infringement of the landowner’s property right even without recognizing the rent on the right to grave base. The Constitution guarantees the property right, including the ownership, but the contents and limitations thereof are to be determined by law, and the exercise of the property right is appropriate for public welfare (Article 23(1) and (2) of the Constitution). As such, the guarantee of land ownership cannot be absolute. Inasmuch as the customary law has the same effect as the law, land ownership is subject to certain limitations under the customary law on the right to grave base may be sufficiently permitted under the constitutional principle on the right to grave base.

B) Even if a customary law has been recognized as a legal norm, if the members of the society have no conviction as to the legal binding force of such custom or practice, or if such customary law does not fit the overall legal order at the point of application due to changes in the basic ideology governing the society or social order, such customary law is denied as a legal norm (see, e.g., Supreme Court en banc Decision 2002Da1178, Jul. 21, 2005). However, if the Supreme Court denies the validity of the customary law which has been recognized as being supported and valid by the legal conviction of the members of the society for a long time on the grounds that it is inconsistent with the overall legal order due to changes in the basic ideology governing the society or the social order, and thus, it is not clear that the validity of the past legal relationship formed over a period of time according to the existing customary law has not been able to maintain the legal stability. Therefore, in order to deny the validity as a legal norm of the customary law, it is not clearly evident that there was no change in the overall structure surrounding the custom and the legal order of the members.

Our legal system recognizes prescriptive acquisition as a lawful method for the maintenance of social order, remedy for difficulty in proof, realization of the litigation economy, etc. The ownership itself transferred free of charge upon the completion of prescriptive acquisition. It is nothing more than acquiring the right to use land, not the ownership, in the case of the right to grave base. In light of the fact that the possession of the grave base is peaceful and public performance for prescriptive acquisition, and that the prescriptive acquisition is recognized only when the landowner did not exercise his/her right at any time for twenty (20) years, even if he/she had exercised his/her right to suspend prescriptive acquisition, it cannot be viewed as violating our overall legal order.

The Majority Opinion’s interpretation as to the meaning of the existence of the prescriptive acquisition system, as well as providing room for new disputes, cannot be deemed as a legitimate interpretation of the law. As seen earlier 1) there is no evidence that the previous custom has been changed with respect to the content of the right to graveyard recognized under the customary law, and even though there is no apparent change in the perception of the members of the society surrounding it, the basic ideology that controls the society, or the social order, the application of the customary law is easily excluded or the content thereof is changed by the method of modification of the precedents cannot be deemed as a equitable situation that seriously undermines legal stability.

4) Lastly, as mentioned in the above decision of the Constitutional Court, it cannot be said that the dispute seeking the excavation of the grave would rapidly increase upon the claim for extinguishment of the right to grave base due to the delay in the rent, if recognizing the obligation to pay the rent to the person holding the right to grave base as mentioned above. While the dispute was for recognizing the right to grave base, it would be different in the future as a dispute to extinguish the right to grave base. Ultimately, the prescriptive acquisition of the right to grave base would bring about significant damage to the public morals of our society, which has been recognized as the right under the customary law.

It can not be asked whether the form of the right to graveyard, which the Supreme Court tried to guarantee through the en banc Decision in 2017, was this.

B. We examine the conclusion of the instant case.

The lower court partly accepted the Plaintiffs’ claim for the payment of the instant land rent against the Defendant on the ground that, at least from the time when the landowner demanded the payment of the land rent, the landowner is obligated to pay the land rent for the grave base.

However, in so determining, the lower court erred by misapprehending the legal doctrine on the land rent for the right to grave base, thereby adversely affecting the conclusion of the judgment.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

7. Concurrence with the Majority by Justice Park Sang-ok, Justice Min You-sook, Justice Noh Jeong-hee, and Justice Noh Jeong-ok

Concurring Opinion and Dissent’s several arguments presented by the Dissenting Opinion are inconsistent with the necessary scope and supplement the grounds of the Majority Opinion.

A. As to the separate opinion

1) There is no difference in view of the fact that, in determining the obligation to pay the rent to the person who acquired the right to graveyard by prescription, it is necessary to consider the principle of property right guarantee under the Constitution or the content and effect of ownership under the Civil Act. However, the Concurring Opinion, based on the principle of property right guarantee under the Constitution, the content and effect of ownership under the Civil Act, and the ordinary transaction concept, ought to be considered as the use of another’s land as a matter of principle in our legal order, and further, such interpretation is based on the nature of the right to graveyard by prescription as a matter

As long as the limited real right on the right to grave base is recognized under the customary law, the landowner’s exercise of ownership on the part of the land that was the grave base within the reasonable extent necessary for the protection and management of the grave (see, e.g., Supreme Court Decision 9Da14006, Sept. 26, 2000; en banc Decision 2017, Sept. 26, 2000). Nevertheless, the Constitutional Court held that the customary law on the prescriptive acquisition of the right to grave base violates the excessive prohibition principle and cannot be deemed as infringing on the landowner’s property right, and furthermore, it is difficult to view it as excessive restriction beyond the necessary limit solely on the ground that there is no obligation to pay the land rent in principle. (see, e.g., Constitutional Court Decision 2017HunBa208, Oct. 29, 2020). Accordingly, in determining the obligation to pay the right to grave base, the constitutional guarantee of property rights or the ownership under the Civil Act and the substance and basis of ownership cannot be deemed sufficient.

In addition, even though it is common to agree to pay the price for the use of land, such as rent and land rent, in cases where the possessor uses another person’s land, as mentioned in the separate opinion, the landowner still may establish a superficies without compensation or enter into a loan for use, as well as the Civil Act does not provide for the payment of land rent as the price for the use of superficies (Article 279 of the Civil Act). Therefore, if there is no agreement for the use of superficies in a contract for superficies, it is deemed that the use of land is free of charge unless there are special circumstances, such as where there exists an agreement between the parties on the use of land owned by another person in a legal relationship that uses land owned by another person, and it cannot be uniformly said that the use of land is deemed a gratuitous use relationship, and most of the parties cannot be applied as it is the concept of today’s transaction setting up the use relationship by an agreement on

Unless otherwise provided for in law, civil matters shall be governed by the customary law, and if there is no customary law (Article 1 of the Civil Act). The cooking focuses on the social meaning, is understood or expressed as the norms of community life, the general principles of law, the social feasibility, equity, justice, etc., which are thought based on the people's personality or form, and is the basis of a court (legal source), i.e., in the absence of a sexual law or customary law

In the en banc Decision 2007Da27670 decided Nov. 20, 2008, the Supreme Court held that since the previous customary law which takes the descendants among co-inheritors as the expulsionist has lost its validity without any provision under Article 1008-3 of the Civil Act, it should be decided by cooking pursuant to Article 1 of the Civil Act. Supreme Court en banc Decision 2002Da1178 Decided July 21, 2005 has lost its validity, since the previous customary law which limits the qualification of clan member to adult male, the qualification of clan member should be supplemented by the cooking of Article 1 of the Civil Act. The majority opinion and minority opinion as to what is reasonable as a result of the cooking application of the above en banc Decision is divided into the majority opinion and minority opinion, but it is consistent with the opinion that the decision should be made according to cooking. The majority opinion is that the criteria for judgment on the validity of the customary law and the purport of the common law concerning the ownership and the property right of this case, which are not in conformity with the principle of equity.

2) The Concurring Opinion states that the provisions of the Civil Act on statutory superficies should be applied preferentially to the land rent for the right to grave base, and that it is not appropriate to determine otherwise on the basis of cooking. However, as stated in the Concurring Opinion, in order to analogically apply the legal norms, there should be a common point or similar point between a non-legal issue and a matter where legal regulations exist, and that analogical application should be evaluated as fair in light of the legal system, legislative intent and purpose, etc. (see Supreme Court Decision 2019Da226135, Apr. 29, 2020). It is difficult to evaluate that analogical application of the provisions of the Civil Act on statutory superficies to the obligation to pay the land rent for the right to grave base by prescription is justifiable for the following reasons.

Even in the sexual law, the law on real rights governing the control relationship over human things is the area affected by the historical tradition and social customs of each country compared to the other legal areas. Moreover, the prescriptive acquisition of the right to grave base is recognized by the customary law for the protection and management of the special subject of the grave, and the content of rights, such as requirements for, scope and duration of, and duration of, such as a grave, is not the same as the rights under the sexual law. This is because, as mentioned in the en banc Decision in 2017, the Majority Opinion referred to in the en banc Decision in 2017, there are many cases where land owners allow the free use of the grave base in consideration of the value of forest and land utilization and the peculiarity of the grave center, and have recognized the prescriptive acquisition of the right to grave base by respecting such factual relations formed over the grave for a long time.

In determining the specific contents of the right to grave base that is not determined under the customary law, the court shall make a determination by fully taking into account the historical background or characteristics of the right recognized as the right under the customary law, and the need to prevent social confusion caused by the change of precedents of the Supreme Court, etc. As seen earlier, as seen in the Majority Opinion, the Supreme Court recognized the prescriptive acquisition of the right to grave base as the customary law, and derived a specific and reasonable interpretation without complying with the provisions of the Civil Act regarding the scope, duration, etc. of the right to grave base. The obligation to pay the right to grave base by prescriptive acquisition is not the same as that of the legal superficies. In a case where the right to grave base was acquired by prescription by occupying the grave base for a long time and openly and openly without any objection of the landowner, respecting such existing factual relations accords with the purport of the customary law on prescriptive acquisition of the right to grave base, and the scope of the obligation to pay the right to grave base by the person who acquired the right to grave base by prescription under the aforementioned background and requirement is a natural rather than natural interpretation.

3) The Concurring Opinion states that the person obliged to return unjust enrichment or compensate for damages during the period of prescription, and thus, is obligated to pay the rent from the time of the installation of a grave even after the prescriptive acquisition. However, the legal relationship after the prescriptive acquisition is not necessarily the same as that before the prescriptive acquisition.

In general and typical cases of ownership, the possessor is liable to return unjust enrichment equivalent to the profit from the use of land to the landowner during the period of prescription, but the acquisition of ownership after the completion of the acquisition by prescription is retroactive to the commencement of possession due to the retroactive effect of the acquisition by prescription (Article 247(1) of the Civil Act). As a result, the possession during the period of prescription is based on a legitimate title, and the return of unjust enrichment to the landowner that occurred during the period of prescription has not been extinguished or retroactive.

In the case of the right to grave base, the grave owner has no legitimate right to possess the grave base while the period of prescription expires, and thus, he/she is obliged to restore the grave to the landowner or return unjust enrichment to the landowner. However, the right to grave base upon the completion of the prescriptive acquisition is retroactive to the time when the grave was installed, the possession of the grave base becomes the legitimate possession on the basis of the right to grave base from the beginning of the grave, and thereby, the right to return unjust enrichment premised on

The separate opinion states that, upon the completion of the prescriptive acquisition of the right to grave base, the obligation to return the unjust enrichment that has already occurred during the prescriptive period retroactively changes into the obligation to pay the land rent. However, its nature differs from the obligation to return the unjust enrichment premised on the illegal occupation and the obligation to pay the land rent premised on the lawful use relationship. The obligation to return the unjust enrichment is an in personam relationship only between the possessor and the landowner. However, the obligation to return the unjust enrichment is an in personam relationship that arises between the possessor and the landowner, but the obligation to return the unjust enrichment is also effective as against the third party, such as the transferee of the land, if determined by the court at the request of the parties, as it constitutes the substance of the real right. Even though the retroactive effect of the prescriptive acquisition can be a basis for retroactively extinguishing the obligation to return the unjust enrichment that has already occurred during the prescriptive period, it cannot be said

4) The Concurring Opinion does not logically explain that a claim for the performance is filed even if the rights and obligations have not arisen, and that a landowner cannot claim the performance of the payment of the rent when a claim for the payment of the rent has not occurred. However, the Concurring Opinion’s concurrence is unreasonable as it criticizes the Majority on the premise different from the Majority Opinion, and it is difficult to agree logically, as it does not necessarily mean that the occurrence of the claim must be prior to the claim for the performance.

According to the Majority Opinion, a person who has acquired the right to grave base by prescription by occupying the grave base for twenty (20) years without payment for the rent, does not bear the obligation to pay the rent before the landowner claims the rent, but at the time when the landowner claims the rent. As can be seen, in the legal order where one party’s declaration of intent or sole act causes the rights and obligations or affects the claims and obligations, it may be deemed that the law and order to which the Gender Equality and Family Act applies. For instance, the obligee’s claim for performance may be deemed as a cause for delay of the obligor (Article 387(2) of the Civil Act). In addition, as mentioned in the Majority Opinion, if the period for performance of the obligation is not specified, the effect of the increase or decrease of the rent, etc. upon exercising the right to claim for increase or decrease of the rent, and the parties are liable to pay the increased or decreased rent, etc. from that time. Therefore, it cannot be said that the rights and obligations may be logical or natural as a result of a party’s claim in a legal relation.

B. As to the Dissenting Opinion

1) The Dissenting Opinion argues that the right to grave base is a real right under the customary law, and thus it is unreasonable for the court to declare the content of the customary law through an inspection or confirmation of the customary law, and the court to determine its content through interpretation. However, the Dissenting Opinion’s view results in the Supreme Court’s conclusion that it is possible only through an inspection or detection to change the existing view on the content of the right recognized under the customary law, and cannot be accepted as it is. Even if the right to grave base is recognized under the customary law, the court shall determine whether the obligation to pay rent, which is the issue of the instant case, exists through the interpretation of the customary law and the application of specific matters, and the Supreme Court shall be deemed to have changed its view on the interpretation or its application of the customary law in accordance with the general standards

In addition, the Dissenting Opinion’s view that the custom, as long as it is not confirmed that the prescriptive acquisition of the right to grave base is a right at a cost, ought to be deemed free of charge, is deemed as analogical application of the legal doctrine on superficies under the Civil Act, and it is difficult to view it as a matter of finding and interpreting the customary

2) As to the prescriptive acquisition of the right to grave base, the Joseon High Court first ruled that the person who installed a grave on March 8, 1927 with the permission of another person in order to own it, acquired a kind of real right similar to superficies on the land owned by another person, even if the person who installed a grave without the permission of the person’s land without the permission, possession of the grave base for twenty (20) years in peace and openly and openly, acquired a real right similar to superficies by prescription, and can set up against a third party without registration. However, since the prescriptive acquisition system was a modern legal system that was no longer in the Joseon Dynasty era, it can be deemed that the above Joseon High Court ruling recognized the acquisition of the right to grave base by prescription by combining the custom and modern prescriptive acquisition system with the custom with the protection of the right to use the land for the protection and service of the grave, and the modern prescriptive acquisition system for the protection of the right to grave base by prescription. The acquisition of the right to grave base by prescription has been established under the customary law.

이처럼 취득시효형 분묘기지권이 당초 관습에만 근거한 것이 아니라 취득시효 제도를 결합하여 인정되었던 결과, 권리의 구체적인 내용이나 효력 범위에 관하여 관습의 존재가 확인되지 않는 부분이 있었다. 분묘기지권을 둘러싸고 당사자 사이에 분쟁이 있는 경우에 법원은 관습법상 권리의 내용이 확인되지 않는다는 이유로 권리 자체를 부정할 수는 없으므로, 종래 대법원은 관습법과 성문법의 해석 및 형평의 관념에 기초하여 취득시효형 분묘기지권의 내용을 확정하여 왔다. 예를 들어, 대법원은 토지 소유자의 승낙을 얻어 분묘를 설치한 경우 성립하는 분묘기지권의 존속기간에 관하여 당사자 사이에 약정이 있는 등 특별한 사정이 없는 한 권리자가 분묘의 수호와 봉사를 계속하고 분묘가 존속하고 있는 동안 분묘기지권이 존속한다고 '해석'함이 타당하다고 하였고(1982. 1. 26. 선고 81다1220 판결 등 참조), 이러한 법리를 취득시효형 분묘기지권에도 적용하였다. 분묘기지권이 미치는 범위 등 분묘기지권의 효력에 관하여, 대법원은 동일 종손이 소유·관리하는 여러 기의 분묘가 집단 설치된 경우 인정되는 분묘기지권은 집단 설치된 전 분묘의 보전수호를 위한 것이므로 그 분묘들 가운데 일부가 분묘기지권이 미치는 범위 내에서 이장되었다면 그 이장된 분묘를 위하여서도 그 분묘기지권의 효력이 그대로 유지된다고 판단하는 한편(1994. 12. 23. 선고 94다15530 판결 등 참조), 분묘기지권의 효력이 미치는 지역 범위 내라고 하더라도 기존의 분묘 외에 새로운 분묘를 신설할 권능은 포함되지 않으므로 부부 중 일방이 먼저 사망하여 설치된 기존의 분묘에 쌍분(雙墳) 형태로 다른 일방의 분묘를 설치하는 것은 허용되지 않는다고 하였다(1997. 5. 23. 선고 95다29086, 29093 판결 등 참조), 나아가 대법원은 단분(單墳) 형태로 합장하는 것도 허용되지 않는다고 하였다(2001. 8. 21. 선고 2001다28367 판결 등 참조). 이러한 판결들은 관습의 존재를 근거로 판단된 것이라고 하기 어렵다.

3) Supreme Court Decision 92Da13936 Decided June 26, 1992, which held on the issues of the instant case, held that, barring any special circumstance, the prescriptive acquisition person has the obligation to pay the site from the time when the right to grave base was established. Meanwhile, Supreme Court Decision 94Da37912 Decided February 28, 1995, applied the legal principle on the site payment of superficies to the right to grave base by prescriptive acquisition, and in light of the fact that the payment of the site payment on superficies is not an element, and it is impossible to seek the payment of the site payment as long as there is no agreement on the site payment, the prescriptive acquisition-type right to grave base does not need to pay the site payment. However, all of the above decisions do not examine and confirm the existence of the custom or practice approved as a legal norm on whether the prescriptive acquisition-type right is an amount of compensation or without compensation, nor did the Supreme Court have determined that the right still exists in the customary law as to the grave installed before the enforcement of the Funeral Act.

C. Even when the Supreme Court recognizes the prescriptive acquisition of the right to grave base under the current Civil Act as a customary law, the economic and social environment of our society has been significantly changed for a period of 60 years. The expansion of cremation, charnel facilities, or graveyards due to the enactment and implementation of the Burial Act, the Funeral Act, etc., and the Funeral Act, and the funeral culture is gradually changed from burial, and the funeral culture is gradually being changed from burial, and the payment of usage fees and management expenses for public or private graveyards installed is naturally changed. As such, it is reasonable to view that the right to grave base should pay the compensation for the use of the base at the request of the landowner, inasmuch as maintaining the previous usage relationship is not fair in light of the sense of social and economic circumstances surrounding the right to grave base.

In addition, if the person holding the right to grave base is liable to pay rent from the time when he/she receives a claim from the landowner, it may achieve desirable results consistent with the overall legal order that respects the purpose of the customary law that recognized the prescriptive acquisition of the right to grave base to prevent any unilateral sacrifice by the landowner and respect private property rights. The person holding the right to grave base who has acquired the right to grave base by prescription is obliged to pay rent from the time when the landowner files a claim for rent at a judicial or extrajudicial stage. If the rent determined by the court is not paid for two or more years at the request of the party (Article 287 of the Civil Act), the landowner may file a claim for the extinction of the right to grave base (Article 287 of the Civil Act). However, if the amount of the rent on the right to grave base is not determined by a party’s consultation or court’s decision, it cannot be deemed that the person holding the right to grave base has paid the rent without delay, and thus, the right to grave base extinction is not allowed (see, e.g., Supreme Court Decision 93Da5297

Therefore, even in a case where the person holding the right to grave base has no economic ability to pay the rent, he/she may prepare a plan and prepare for a relocation, etc. for at least two years from the time when he/she received the claim for the rent, and may escape from the situation where a grave in a short period is forced to be opened. Meanwhile, in cases where the landowner filed a claim for the rent in the past, the person holding the right to grave base should pay the rent from the time of the claim, and the right to grave base may be extinguished upon the claim for the extinguishment of the right to grave base, upon the request for the extinguishment of the right to grave base, if the land owner fails to pay the rent more than two-years as determined by a judgment. However, it

For the foregoing reasons, we supplement the reasoning of the Majority Opinion.

Justices Park Sang-ok

Justices Lee Dong-won

Justices Kim Jae-in

Justices Park Il-san

Justices Noh Jeong-chul

Justices Min Min-young

Justices Kim Gin-soo

Justices Lee Jae-hwan

Chief Justice Noh Jeong-hee

Justices Kim In-bok

Justices Noh Tae-ok

Justices Heung-gu