In a case where a person who installed a grave on his own land acquires the right to grave base by failing to make a special agreement to change the grave while transferring the land, whether he is liable to pay rent for the grave base from the time when the right to grave base is established (affirmative in principle)

In a case where a person who has installed a grave on his own land acquires the right to grave by failing to make a special agreement to change the grave while transferring the land, the person on the right to grave base, barring any special circumstance, is obligated to pay rent to the landowner for the use of the land to the site of the grave from the time when the right to grave

Articles 185, 279, and 287 of the Civil Act

Supreme Court Decision 67Da1920 Decided October 12, 1967 (No. 15-3, 212) Supreme Court Decision 2015Da206850 Decided July 23, 2015 (Gong2015Ha, 1245)

CC&A Co., Ltd. (Law Firm Ulsan, Attorneys Kim Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant clan (Law Firm Jeong, Attorneys Jeon Sung-hwan et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2019Na82462 Decided November 10, 2020

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to Suwon District Court. The plaintiff's remaining grounds of appeal are dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that the Defendant clan acquired the right to graveyard, as a person who installed and managed the instant graves on the instant real estate owned by the Defendant clan, on the ground that there was no proof as to the fact that the Defendant clan, at the time of possession of the mother’s land of the instant real estate, has provided for the protection and management of the instant graves installed at the time of the possession of the land of the instant real estate, and that

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the acquisition of the right to grave base or omitting judgment.

2. Regarding ground of appeal No. 2

In cases where a person who installed a grave on his/her own land acquires the right to grave by failing to make a special agreement to change a grave while transferring the land, barring any special circumstance, the person holding the right to grave base is obligated to pay rent to the landowner for the use of the land for the said grave base from the time when the right to grave base is established (see, e.g., Supreme Court Decisions 67Da1920, Oct. 12, 1967; 2015Da206850, Jul. 23, 2015).

The lower court dismissed the Plaintiff’s primary claim against the Defendant clan seeking removal of the instant grave, delivery of real estate, and return of unjust enrichment equivalent to the rent, on the ground that there was no proof as to the fact that the Defendant clan, who installed and managed the instant grave on the mother’s land of the instant real estate owned by the Defendant clan, agreed on the removal of the said grave at the time of transfer of the said land.

Therefore, the court below should have deliberated on the amount of the land rent and ordered the payment of the land rent for the plaintiff's preliminary claim seeking the payment of the land rent for the base of the grave in accordance with the legal principles as seen earlier. Nevertheless, the court below rejected the plaintiff's preliminary claim by deeming that the plaintiff cannot seek the land rent for the possession of the defendant clan unless the agreement between the plaintiff and the defendant clan on the land rent was made. In so determining, the court below erred by misapprehending the legal principles on the land base for the land base for the transfer type, which affected the conclusion of the judgment. The ground of appeal

3. Conclusion

Therefore, the part of the lower judgment’s conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s remainder of appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-hyung (Presiding Justice)