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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) Defendant 1’s grave excavation (in fact-finding) Graberter’s grave (hereinafter “instant grave”)
As the Defendant has the right to manage the grave of this case, the act of removing the portion of the grave of this case does not constitute a crime due to lawful exercise of the right to manage the grave of this case. 2) The Defendant did not have committed an act of converting a mountainous district by removing the part of the grave of this case.
Since the Defendant was aware of the instant grave within the existing cemetery and installed the Defendant’s family graveyard next thereto, it does not constitute an act of conversion of a mountainous district as a justifiable act based on the right to grave base.
B. The lower court’s suspended sentence for the period of four months of imprisonment is deemed to be too unhued and unreasonable.
2. Determination
A. As to the defendant's assertion of misconception of facts as to the excavation of a grave, it shall be deemed that the crime of excavation of a grave shall be subject to punishment only in cases where the grave is excavated in violation of the religious order of the body, even if a person who is not authorized or authorized to do so, or a person who is authorized to protect, serve, manage, and dispose of the grave without permission, or a person who obtains permission from the person who is duly authorized by him/her, carries out and excavates the grave for the deceased's religious and customary respect, the illegality of the act shall be excluded (see, e.g., Supreme Court Decision 94Do1190, Feb. 10, 195). If, in reality or in accordance with the customary law, the family heir's right is attached to the deceased, and it shall not be involved in another descendants or clan, not in the case of the deceased, or the family heir's right to the grave base shall be reverted to the right to the grave base if the deceased's right to the grave base has been maintained or managed by the clan.
Supreme Court Decision 200 June 28, 2007