분묘발굴유골손괴등
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal is that a person who discovered a grave for the defendant 5 MabC and his/her spouse I's joint funeral, for the defendant's high tide Ma and one grave for his/her spouse J (hereinafter "the grave of this case"), K as well as K, and the defendant did not participate only in the request of K for the excavation of the grave of this case to H at his/her request.
Even if the defendant discovered the grave of this case, the illegality of this case is dismissed because the defendant has the authority to manage and dispose of the grave of this case.
Nevertheless, the lower court erred by misapprehending the legal principles regarding the determination of guilty of the facts charged of this case.
2. Determination
A. The purpose of the crime of excavating a grave is to punish a person who is not authorized to do so or who is authorized to do so in violation of the religious order and order of the body of the grave. Thus, if a person who is authorized to protect, serve, manage, and dispose of the grave without permission, or a person who is duly authorized by him/her to do so, finds it out with the religious and customary order of the body, the illegality of the act is excluded. Meanwhile, the right of service, protection, management, and disposal of the grave is not belonging to all of the clans or descendants, but exclusively belongs to the family heir with respect to the grave.
Article 996 of the former Civil Act (amended by Act No. 4199, Jan. 13, 1990; hereinafter “former Civil Act”) provided that the ownership of the forest land within the scope of 1 information belonging to a grave, the farmland of not more than 600 square meters, the farmland of not more than 600 square meters, the ownership of a tombstone and a ductal shall be succeeded to by the family heir.
Therefore, when Australia dies before the amendment of the above provisions of the Civil Act, the right to manage and dispose of the graves of Australia succeeds to the heir of Australia.
(See Supreme Court Decision 94Do1190 delivered on February 10, 1995). B.