Whether the legal norm that, in cases where a grave was installed on the land owned by another person for twenty (20) years, possession of the grave base shall be acquired by prescription, a customary real right similar to superficies, is maintained as to a grave installed before January 13, 2001, the enforcement date of the Act on Funeral Services, Etc., wholly amended by Act No. 6158, Jan. 12, 200 (affirmative)

[Majority Opinion] (A) The Supreme Court recognized the prescriptive acquisition of the right to grave base as one of the customary laws which have been maintained for a long time in our society, and recognized that the social order on the graves formed on the basis of the facts that have been continuously continued for a long period of not less than 20 years was legally protected, and confirmed that the legal conviction of the members of the community on the said custom has been firmly maintained for a period of not less than 50 years from January 1, 1960, the enforcement date of the Civil Act, and applied it.

If the Supreme Court denies the validity of a customary law, which has been recognized as being supported and valid by the legal conviction of the members of the community for a long time, on the ground that it became inconsistent with the overall legal order due to changes in the basic ideology governing the society and in social order, etc., the validity of the past legal relations formed over several hundredss of time according to the existing customary law is shakend off at once, and risk of undermining legal stability. Thus, in order to deny the validity of a customary law as a legal norm, meaningful changes in the overall system of legal order surrounding the custom, along with the overall framework of the legal order surrounding the custom, and the perception, attitudes, and social and cultural background of the members of the community, which are the basis of the Supreme Court precedents recognizing the validity of the customary law, should be clearly revealed, and if such circumstances are not clear,

(B) It is difficult to accept the assertion that the customary law on the right to grave base or the prescriptive acquisition thereof has been extinguished or changed by the enforcement of the Funeral Act, regardless of whether it was before or after the amendment, which was enforced on January 13, 2001 (hereinafter “the Funeral Act”). The entire amendment of the Burial and Graveyard Act by Act No. 6158, Jan. 12, 200; and Article 2 and Article 8489 of the Addenda of the Funeral Act (hereinafter “the Funeral Act”) enacted on January 13, 201 (hereinafter “Act No. 6158”), which was wholly amended by Act No. 8489, May 25, 2007; Article 2(2) of the Addenda of the Funeral Act, which was enforced on May 26, 2008; and Article 1360 of the Addenda of the Funeral Act, which was enforced on the grave owner’s establishment of the said Act, cannot be seen as having been limited to the period of the said grave owner’s establishment of the grave.

In addition, it is difficult to view that the existing customary law on prescriptive acquisition of the right to grave base is inconsistent with the overall legal order with the highest norm, or that its legitimacy and rationality cannot be recognized, due to a significant change in the overall legal system surrounding the right to grave base.

Finally, even if some changes have occurred in the perception of the community members of traditional funeral method or funeral culture, such as an increase in cremation rate, burial culture still exists in our society, and the installation of private graveyards is allowed. It cannot be recognized that the community community’s conviction in the legally binding force of the custom on the right to grave base has disappeared or that such a practice has been essentially changed in the custom on the right to grave base.

(C) If so, the right to grave base, which is a customary real right similar to superficies, has been recognized as a legal norm for a long time since the construction of a grave on another’s land for twenty (20) years in a peaceful and public performance and possession of the grave base, has been recognized as a long-term custom or practice, and such legal norm has been maintained up to the present day as to a grave installed prior to January 13, 2001, the enforcement date of the Funeral Act (No. 6158).

[Dissenting Opinion by Justice Kim Yong-deok, Justice Park Poe-young, Justice Kim So-young, Justice Kwon Soon-il, and Justice Kim Jae-hyung] (A) After the implementation of the current Civil Act, the concept of ownership of land including woodland and the system of private property has been established, and the economic value of land has increased, thereby enhancing the awareness of the landowner’s rights and the need for protection. In addition, as funeral culture centered on burial has considerably deteriorated, the social and cultural foundation for recognizing the prescriptive acquisition of the right to grave base for those graves installed without the landowner’s permission has been lost, and such custom would be inconsistent with the overall legal order.

(B) Although allowing the prescriptive acquisition of the right to grave base for those graves installed without the landowner’s consent was customary recognized by reflecting the burial culture in the past when the ownership of the land, such as forest and field, was not established, such custom would not be justified and rationality because it would be inconsistent with the overall legal order including the constitutional provisions on property rights, the Civil Act provisions on the content of ownership and the requirements for prescriptive acquisition, the regulation of the Funeral Act, and the regulation of the Funeral Act, etc., at least until the enforcement of the Funeral Act (No. 6158) on January 13, 2001.

Although prescriptive acquisition of the right to grave base has been recognized for all cases where graves were installed on another’s land without the landowner’s permission on the ground of traditional ancestor worship, grave installation practices, etc. However, in light of the social reality different from those of the past, such as changes in the perception of the general public in the funeral culture, changes in funeral system, and strengthening the landowner’s awareness of rights, the legal conviction in the custom of prescriptive acquisition of the right to grave base has been significantly deteriorated, and the substantial extinction of such legal conviction has been reflected in the legislation of the Funeral Act.

(C) Therefore, the previous custom recognizing the prescriptive acquisition of the right to grave base, which is de facto permanent and gratuitous, solely on the fact that there was a peaceful and openly occupied possession for twenty (20) years without the landowner’s consent, was lost its legitimacy and rationality as it goes against the overall legal order, including the Constitution respecting private property, at least until the Funeral Act (No. 6158) enters into force on January 13, 2001, and as the members of our society do not have conviction as to the legal binding force of such custom, has lost its validity as a legal norm. Accordingly, in the case of a grave for which the twenty (20) years have not yet passed as of January 13, 201, the prescriptive acquisition of the right to grave base, with the previous custom as to prescriptive acquisition of the right to grave base, which lost its legal validity, cannot be asserted.

Articles 23(1) and 119(1) of the Constitution of the Republic of Korea; Articles 1, 106, 185, 186, 197(1), 211, 245(1), 247(2), 248, and 279 of the Civil Act; Article 4(2) and 16(2) of the former Burial, Graveyard, etc. Act (amended by Act No. 2069, Dec. 31, 1968; Article 20(2)1 of the Addenda of the Civil Act; Article 20(2)1 of the former Act (see current Article 40 subparag. 2 of the Act on Funeral Services, etc.); Article 20(3) of the former Act on Burial, etc. and Graveyard, Etc. (see current Article 9(1) and (2)19(2) of the former Act (Amended by Act No. 1961, Dec. 31, 196); Article 20(3) of the former Act (see current Article 20(19(1)

Supreme Court en banc Decision 4290Da539 delivered on October 31, 1957 (No. 5-3, 33), Supreme Court Decision 4290Da771 Delivered on June 12, 1958 (No. 15-3, 212), Supreme Court Decision 81Da1220 Delivered on January 26, 1982 (Gong1982, 301, 3040 Delivered on October 25, 201), Supreme Court Decision 91Da18040 Delivered on December 23, 1994 (Gong1991, 2820 delivered on December 23, 201), Supreme Court Decision 205Da19640 Delivered on April 26, 1965)

Plaintiff (Attorney Choi Han-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Han & Yang LLC, Attorneys Cho Hong-han et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2012Na3412 Decided January 25, 2013

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. A. The right to grave base is a customary real right that can be used for land owned by another person to the extent necessary to protect and urn up a grave to the extent that it is necessary for the purpose of attaining the purpose of preserving and urning it (see, e.g., Supreme Court Decisions 94Da15530, Dec. 23, 1994; 201Da63017, 63024, Nov. 10, 201). Here, the term “the grave base” refers to a place where a dead person was buried inside the grave, such as remains, remains, and causes, and remains in the grave (see, e.g., Supreme Court Decision 91Da18040, Oct. 25, 1991). The right to grave base, a customary real right, is recognized only where it can be recognized in the form of an external grave, such as a dyke, and is not recognized as having been registered or not recognized as having been registered.

The Supreme Court has held that the right to grave base shall be acquired when a grave was installed with the consent of the owner of another’s land (see, e.g., Supreme Court Decisions 4290Da7771, Jun. 12, 1958; 99Da14006, Sept. 26, 2000) and that the right to grave base shall be acquired unless the person who installed the grave has made a special agreement to change the grave when he/she transferred the land (see, e.g., Supreme Court Decision 67Da1920, Oct. 12, 1967). The Supreme Court has held that the right to grave base, which is a customary real right similar to superficies, shall be acquired when a grave was installed without the consent of the owner of another’s land (see, e.g., Supreme Court Decision 67Da1920, Oct. 12, 1967; 201Da361301, Oct. 31, 20197).

B. From the foregoing perspective, our nation was worshiped by the ancestor worship, and our nation was found to have a good place under the influence of the ancestor worship, and the grave was installed in the ancestor, and the place was considered to be a healthy place where not only the body or remains in the ancestor but also the body or remains in the ancestor but also the body or remains in the ancestor. In addition, the concept that the descendants as well as ordinary people should respect them as an area with dignity and should not be damaged without permission. As such, the method of funeral for the basic funeral of our society, which has a negative impact on the traditional culture emphasizing filial respect and ancestor worship for the parents, was “replace” where the body or remains were buried on the ground.

In the Joseon Dynasty, the private or private ownership of forests, where graves were mainly installed in accordance with the principle of the sharing of forests, was not recognized. As such, when a grave was installed in mountainous districts, protection was provided in the form of a private right of possession, such as “the right of graveyard occupation” or “the right of graveyard occupation,” while the grave remains in existence.

However, with the formation of modern forest ownership system, legal disputes began with respect to graves installed on another's land. The Supreme Court recognized the right to grave base, which is the right to use the grave, as a real right under the customary law similar to superficies, on the basis of the existence of the burial-centered funeral culture, which has been widely spreaded in our society, and the custom or practice that protects the right to use the grave, which is the right to use the grave for the purpose of owning the grave, as a real right under the customary law similar to superficies, and held that the right to grave base was acquired on the ground of the landowner

C. As above, the Supreme Court has recognized the prescriptive acquisition of the right to grave base as one of the customary laws which have been long-term in our society, and has legally protected the social order on the graves formed on the basis of the facts that have been continuously continued for a period of not less than 20 years, and confirmed that the legal conviction of the members of the community on the said custom has been firmly maintained for a period of not less than 50 years from January 1, 1960, the enforcement date of the Civil Act, and applied it.

On the other hand, the Supreme Court held that the term of the right to grave base acquired as above does not follow the provisions on superficies under the Civil Act, but rather, if there are special circumstances such as an agreement between the parties, etc. In the absence of such circumstances, the right holder continued to safeguard and serve the grave and continue the grave (see, e.g., Supreme Court Decisions 81Da1220, Jan. 26, 1982; 2005Da44114, Jun. 28, 2007).

2. A. The Act on Funeral, etc., enforced on January 13, 2001 (hereinafter “the Funeral Act, regardless of whether before or after the amendment”), examines the allegation in the grounds of appeal that the previous customary law on prescriptive acquisition of the right to grave base becomes no longer effective because it is inconsistent with our legal order due to changes in the perception of the members of the community on the right to grave base and changes in the overall legal order, such as the legislation on graveyards, etc., and changes in the legal regulations on the prescriptive acquisition of the right to grave base, such as restricting the installation period of graves and strengthening land ownership by providing for the provisions that restrict the prescriptive acquisition of the right to grave, not recognizing the prescriptive acquisition of the right to grave base, etc.

B. Even if a social norm created through repeated practices of the society has been approved as a customary law, if the members of the society have not satisfied the legal binding force of such practices, or if such customary law became inconsistent with the overall legal order at the point of application due to changes in the basic ideology governing the society or in the social order, such customary law is not only denied its validity as a legal norm (see Supreme Court en banc Decision 2002Da1178, Jul. 21, 2005, etc.).

However, if the validity of the customary law, which the Supreme Court has recognized as being supported and valid by the legal conviction of the members of the society for a long time, is denied on the ground that it became inconsistent with the overall legal order due to changes in the basic ideology governing the society or in the social order, it is likely to harm the legal stability, as it temporarily shakings the validity of past legal relations formed over several hundredss of time under the existing customary law. Therefore, in order to deny the validity as a legal norm of the above customary law, it shall clearly indicate significant changes in the overall legal system surrounding the custom and the perception and attitude of the members of the society, which are the basis of the Supreme Court precedents recognizing the validity of the customary law, along with the overall legal order surrounding the custom, and if such circumstances are not clear, it shall not be concluded that the existing customary law cannot maintain its validity as a legal norm.

C. First of all, the argument in the grounds of appeal purporting that the customary law on the right to grave base or the prescriptive acquisition became extinct or changed by the enforcement of the Funeral Act is difficult to accept for the following reasons.

(1) The Funeral Act (amended by Act No. 6158, Jan. 12, 200; hereinafter “the Burial and Graveyard Act”) which was wholly amended by Act No. 6158, Jan. 13, 2001 (hereinafter “the Burial Act”) stipulates that the period of installation of a grave shall be limited to 15 years, and the extension of the period of installation shall be permitted only three times every 15 years (Article 17(1) and (2). In the event the landowner’s relocation of a grave installed without the landowner’s permission, the relative of the grave may not claim against the landowner the right to use the land or any other right to preserve the grave (Article 23(3)); however, the said provisions shall apply from the grave installed first after the enforcement of the Act with respect to the period of application of the said provisions (Article 2 of the Addenda).

The Funeral Act, which was wholly amended by Act No. 8489 on May 25, 2007 and enforced on May 26, 2008, provides that, like the Funeral Act prior to the amendment (Act No. 6158), as well as the Funeral Act prior to the amendment, the person having relation to a grave may not claim the right to use land, etc. for a grave installed without the landowner’s consent (Articles 19 and 27(3)). However, the said provisions also provide that the said provisions shall also apply to a grave installed for the first time after January 13, 201, the enforcement date of the Funeral Act prior to the amendment (Act No. 6158).

Furthermore, the Funeral Act amended by Act No. 13660, Dec. 29, 2015; and enforced the same day, limits the duration of a grave to 30 years, and limits the duration of a grave only once to 30 years (Article 19(1) and (2)). Furthermore, the said limitation on the duration of a grave also provides that the said restriction shall apply to a grave first installed after January 13, 201, the enforcement date of the Funeral Act (Act No. 6158), which amended the Burial Act (No. 6158).

(2) According to the aforementioned supplementary provisions of the Funeral Act, the provisions that limit the installation period of a grave and that the relative of a grave cannot set up against the landowner when the landowner opens a grave without the landowner’s permission shall only apply to those graves installed after the enforcement of the Funeral Act (No. 6158). As such, it cannot be deemed that the ground for the existence of the right to grave base for those graves installed before the enforcement of the Funeral Act (No. 6158), was lost by the enforcement of the said Act (see Supreme Court Decision 2002Da53377, Dec. 24, 2002).

In other words, the above provisions of the Funeral Act still allow the application of the customary law on the right to grave base recognized by the Supreme Court to those graves installed before January 13, 2001, which was the enforcement date of the Funeral Act (Act No. 6158). This is also a proof that there was no change or extinguishment of the legal conviction of the members of the community on the custom recognizing the right to grave base or the prescriptive acquisition thereof for those graves installed before the enforcement of the Act as of January 12, 2000, which was the amendment date of the Funeral Act (Act No. 6158), or on January 13, 2001, which was the enforcement date of the Act. If it is apparent that there was an obvious change in the basic ideology governing the society or social order, and thus it is necessary to abolish or modify the customary law on the right to grave base, there is no reason to set any legal regulation inconsistent with such customary law.

D. In addition, it is difficult to deem that the existing customary law on prescriptive acquisition of the right to grave base is inconsistent with the overall legal order with the Constitution setting the highest norm, or that its justification and rationality becomes impossible due to a significant change in the overall legal system of legal order surrounding the right to grave base.

(1) Article 185 of the Civil Act provides that “No real right shall be created at will other than that provided for by law or customary law,” thereby recognizing the creation of a real right under the customary law even under the current legal system. Therefore, insofar as the limited real right to the right to grave base is recognized by the customary law, the landowner is bound to limit the exercise of ownership on the part of the land on which the grave base was the grave base to the reasonable extent necessary for the protection and management of the grave (see, e.g., Supreme Court Decision 99Da14006, Sept. 26, 200). As a result of the prescriptive acquisition of the right to grave base by the grave owner, it cannot be the basis for denying the completion of the prescriptive acquisition (see, e.g., Supreme Court Decision 94Da37912, Feb. 28, 1995).

(2) The original statute of limitations aims to maintain social order in which the preservation of evidence is difficult due to the passage of time, and to relieve a person who does not exercise his/her right for a long time is excluded from legal protection (see, e.g., Supreme Court en banc Decision 98Da32175, Mar. 18, 199). In particular, legal stability is the most important ground supporting the statute of limitations (see, e.g., Supreme Court Decision 2009Da44327, May 27, 2010). In other words, the prescriptive acquisition system exists on the grounds of the maintenance of social order, difficult remedy for proof, realization of the litigation economy, etc.

In the past, most people did not own a place where a grave was installed, except in cases where they had a mountain, etc., and a cemetery or a tomb provided by a religious organization, which was developed in the Western society, was rarely nonexistent. Therefore, in the situation where a burial-centered funeral culture was widely spread, most people had no choice but to bury a corpse in another person’s forest and field.

In light of the ordinary practices and actual state of the installation of a grave, most cases where a person who claims the right to grave base has obtained the explicit or implied permission from the landowner, but most cases where the person who installed a grave has prepared evidentiary materials, such as a written contract, or left the grave on the land owned by another person. The Supreme Court precedents on the prescriptive acquisition of the right to grave base often take place where it is practically impossible to prove the fact that the person claiming the right to grave base obtained the permission from the landowner, because it is difficult to prove the fact that the person claiming the right to grave base has obtained the permission due to the change of the landowner, etc., and it is natural to accord with the reasons for the existence of the system for prescriptive acquisition.

In addition, the landowner may exercise his/her right as the owner at any time during the 20-year period for which the prescriptive period has run, and may suspend the prescription by means of seeking the reburial of a grave or seeking the delivery of the occupied portion, etc. under Articles 168 through 177 of the Civil Act applied mutatis mutandis under Article 247(2) of the Civil Act. Therefore, it cannot be said that the protection of the landowner is insufficient.

E. Finally, even if there is a partial change in the community’s perception of traditional funeral method or funeral culture, such as an increase in cremation, it still remains a burial culture that forms the basis of the right to grave base in our society, and the establishment of private graveyards is allowed. In light of the record, there is no easy evidence to find that the community’s conviction in the legally binding force of the custom on the right to grave base has disappeared or that such a practice has been essentially changed.

Therefore, it is difficult to accept the allegation in the grounds of appeal that the validity of the customary law on the right to grave base or the prescriptive acquisition thereof should be denied on the grounds of changes in perception of the community members on traditional funeral method or funeral culture.

F. Thus, the right to grave base, which is a customary real right similar to superficies, has been recognized as a legal norm for a long time since it has been continued for a long time. Such a legal norm has to be maintained up to the present day as to a grave installed prior to January 13, 2001, the enforcement date of the Funeral Act (No. 6158).

3. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower judgment reveals the following facts.

A. The Plaintiff jointly owned with Nonparty 1 (hereinafter “the instant forest”) is 14,257 square meters of forest land ( Address omitted), 173, and the Plaintiff’s (hereinafter “the instant forest”) is 173,000 square meters of forest land and 14,257 square meters of forest land and 257 square meters of forest land (hereinafter “the instant forest”). Nonparty 2, the Si of ○○○○○○○△△△△△△△△△△△ (hereinafter “instant clan”) around 173, with the indication of the drawing(g) attached to the lower judgment, the instant (g) grave was 174 square meters of the instant grave; ② around April 1987, with the indication of the drawing(d) as Nonparty 3’s 1’s capital, Nonparty 2’s capital, and the mother of the instant grave was 100 square meters of the instant grave and 100 square meters of the instant grave (hereinafter “Defendant 1’s capital and Nonparty 5’s capital”).

B. At least 20 years from the date of the establishment of each of the above graves until the Plaintiff brought the instant lawsuit; ① Defendant 1, as a son, has occupied the instant grave and its base while safeguarding and managing the instant grave (c), (d), (f), and (g); ② Defendant 2, as an son of Nonparty 6, has occupied the instant grave and its base while safeguarding and managing the instant grave (b).

4. Based on these facts, the lower court determined that Defendant 1 acquired by prescription the right to grave base of this case with respect to the instant grave (c), (d), (f), and (g), and Defendant 2 with respect to the instant grave (b) under the customary law. Examining the foregoing legal principles in light of the foregoing, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal principles on the prescriptive acquisition of the right to grave base or the validity of the customary law, contrary to what is alleged in the grounds of appeal.

Meanwhile, the reason why the scope of the right to grave base should not exceed the occupied area of graves, etc. as stipulated in Article 18(2) of the Funeral Act is that the right to grave base shall not be exceeded, and it shall not be a legitimate ground for appeal, as it is asserted in the final appeal.

5. 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, except for a dissenting opinion by Justice Kim Yong-deok, Justice Park Poe-young, Justice Kim So-young, Justice Kwon Soon-il, and Justice Kim Jae-hyung, followed by a concurrence with the Majority by Justice Kim Shin, Justice Jo Hee-de, and Justice Kim Jae-hyung.

6. Dissenting Opinion by Justice Kim Yong-deok, Justice Park Poe-young, Justice Kim So-young, Justice Kwon Soon-il, and Justice Kim Jae-hyung as follows.

A. The judgment of the Joseon High Court on March 8, 1927 held that it is customary that a person who installed a grave in the land owned by another person upon the permission of another person shall acquire a kind of real right similar to superficies on the land owned by another person in order to own the grave, and that a person who installed a grave without the permission of another person shall acquire a kind of real right similar to superficies on the land owned by another person in the peace and openly occupied the grave base for twenty (20) years, and that it is a kind of real right similar to superficies on the land owned by another by prescription, and that the right may be asserted against a third party without proof or registration. The Supreme Court

In the Joseon Dynasty where the custom on the use of land for the possession of a grave was established, the private sector or private individual’s ownership of the forest where the grave was mainly installed was not recognized. Since the modern system of forest ownership was formed in the Republic of Korea until the time when the current Civil Act was implemented through the Japanese colonial era, the recognition of the community members’ right to forest ownership was almost nonexistent or very low, and the economic value of forest land was not significant. In light of the past situation where the burial-centered funeral culture widely spreads, most people had no choice but to bury the body of a grave in another’s forest and field. Accordingly, the land owner clearly raised objection thereto. Accordingly, the Joseon High Court and the Supreme Court of Korea have affirmed the broad interpretation of the landowner’s permission on the installation and continuation of the grave and granted the right to grave base without the landowner’s permission.

In other words, the method of funeral in our society was conducted centering on “replace,” where the body or remains were buried underground, from the Joseon Dynasty, which was a dominant culture focusing on filial duty or ancestor worship to the point where its impact remains. Such tradition and custom were the basis for establishing the right to grave base confirmed by the judgment of the Joseon High Court and the Supreme Court precedents.

However, as examined below, following the enforcement of the current Civil Code, the concept of land ownership, including forest land, and the private property system has been established, and the economic value of land has increased, the awareness of land owners' rights has increased, and the need for protection has increased. In addition, as funeral culture centered on burial has considerably deteriorated, the social and cultural foundation for recognizing the right to grave base by prescriptive acquisition as customary for those graves installed without the landowner's permission has been lost, and such custom has come to be inconsistent with the overall legal order.

B. Even though it is a custom or customary law created through repeated practices of society, if there is no justification or rationality in violation of the overall legal order with the highest norm, or if such customary law comes to be inconsistent with the overall legal order at the time of application due to changes in the basic ideology governing the society or in social order, it shall not be recognized as a legal norm (see Supreme Court en banc Decision 2001Da48781, Jul. 24, 2003; Supreme Court en banc Decision 2002Da1178, Jul. 21, 2005).

(1) The Civil Act was enforced as the first modern private law created by our descendants on January 1, 1960, beyond the time when the intended Civil Act was applied. The basic ideology of the Civil Act is the respect for private property and the principle of private autonomy. Articles 23(1) main sentence and 119(1) of the Constitution declare that the market economy order based on the principle of private property and private autonomy concerning economic activities is based on the market economy (see Supreme Court en banc Decision 2002Du8626, Nov. 22, 2007). The Civil Act reflects such constitutional spirit.

Article 211 of the Civil Act provides that “The owner shall have the right to use, profit from, and dispose of the property owned within the scope of law.” In addition, with respect to the prescriptive acquisition of property rights other than ownership, Article 248 of the Civil Act provides that “the provisions of the preceding three Articles shall apply mutatis mutandis to the acquisition of property rights other than ownership,” and Article 245(1) of the Civil Act applied mutatis mutandis by Article 248 of the Civil Act provides that “the person who occupies real estate in peace and openly held for twenty (20) years shall acquire ownership by registering the ownership”, the content and limitation of the ownership of real estate guaranteed by the Constitution (see Constitutional Court en banc Decision 92Hun-Ba20, Jul. 29, 1993).

Article 186 of the Civil Act provides, “The acquisition, loss, and acquisition of real rights by a juristic act on real estate takes effect by registration,” and adopts the so-called “the so-called “the so-called “the so-called system” which takes effect only when the registration method is prepared as to the acquisition, loss, and acquisition of real rights on real estate by a juristic act. In response, the implementation of the Registration of Real Estate Act has been gradually improved by the enforcement of the current Civil Act. The basic ideology of the modern Civil Act, such as the principle of respect for private property, has been naturally settled in our society, and the awareness of the people’s right to land ownership has also increased. As to the change in real rights, the adoption of the so-called “the so-called “the form-called “the principle” should be very careful to the recognition of real rights to real estate without any clear method such as the registration, and to recognize the prescriptive acquisition of real rights on real estate other than ownership or ownership against the intention

(2) Accordingly, the laws enacted on graveyards, etc. have been changed to ensure that funerals can be implemented in accordance with the overall legal order of the Republic of Korea, such as the Constitution and the Civil Act, by reflecting such principles of respect for ownership and private property rights.

(A) The “Rules on Graveyards, crematoriums, Burial and crematization” promulgated during the Japanese colonial era and first regulated on graveyardss (repealed by Article 2 of the Addenda to the Act on Burial, etc. and Graveyards, Etc., Act No. 799, Dec. 5, 1961; hereinafter the same) was strictly regulated the establishment of graveyardss, and was subject to criminal punishment against those who have buried dead bodies or remains without permission in any place other than a cemetery or cemetery. This can be said to be based on the administrative purpose that attempts to crack down on a disturbance and a harm to hygiene (see Supreme Court Decisions 428Da210, Sept. 29, 195; 72Da2464, Feb. 26, 1973). It clearly declared that it is a crime of which it is legally prohibited and punished to illegally bury a dead body on another’s land (see Supreme Court Decisions 428Da210, Sept. 29, 195);

(B) The Burial, etc. Act (amended by Act No. 2069, Dec. 31, 1968) enacted from January 1, 1962 after the enforcement of the Civil Act (amended by Act No. 2069, Dec. 31, 1968; hereinafter “ Burial Act”) provides that burial of a corpse or remains shall not be conducted in any area other than a cemetery but shall not be conducted in any area other than a cemetery (Article 4(1) and (4)). The Burial Act imposes criminal punishment on a person who violates the provision (Article 19 subparag. 1). According to the Burial Act, the Do governor, etc. issued a public notice for a certain period of time with respect to the corpse or remains buried in a third person’s cemetery, and with permission from the Do governor, etc. (Article 16(1)) and Article 16(2) of the Burial Act provides that the landowner, etc. may open the grave with permission from the Do governor, etc. (hereinafter “BO”).

As such, the Burial Act may be deemed to have provided the above provisions for the regulatory purpose of the public law, but the above provisions, like the above “Rules on Burial, Burial, and crematization”, limited the location of a grave to a cemetery and specified that it is prohibited from installing a grave on another’s cemetery owned by the third party without the consent of the landowner as a crime.

(C) Furthermore, the Funeral Act (Act No. 6158), which amended the Burial Act as a whole and enforced January 13, 2001, provides that the landowner, the establisher or relative of a cemetery may rebury a corpse or remains buried in a grave with the permission of the head of a Si/Gun/Gu having jurisdiction over the relevant grave with respect to a grave installed on the relevant land without the landowner’s permission (Article 23(1)), or with respect to a grave installed on the relevant cemetery without the permission of the establisher or relative of the cemetery (Article 23(3) and the relative of a grave installed as above after the enforcement of the Funeral Act, may not claim against the landowner, the establisher or relative of the relevant cemetery the right to use the land or to preserve the grave (Article 23(3) and Article 2 of the Addenda).

Examining the provisions of the above Funeral Act, unlike the previous Burial Act, the landowner, etc. can rebury all graves installed without his/her permission so as to prepare a legal solution by a direct interested party, and also strengthen the landowner’s right by clearly stating that the relative of a grave installed on the relevant land after the enforcement of the Funeral Act without the landowner’s permission cannot claim the landowner’s right to use the land.

In order to ensure the effectiveness of the legislation regarding graveyardss limited to public law regulations, it can be seen that the Act actively reflects the “principle of respect for private property” and “the principle of private autonomy”, which are the basic principles of modern Civil Act, by prescribing the judicial relationship between the landowner and the relative of a grave. However, although the Funeral Act limits the assertion of land use rights regarding a grave installed without the landowner’s permission after the enforcement of the Act, it appears that the right to use the grave should not be retroactively denied or extinguished as a matter of course by the enforcement of the Funeral Act if the grave was installed before the enforcement of the Funeral Act and the right to use the land has already been established. It cannot be said that the said Act explicitly declared in the Funeral Act on the sole ground that it is a grave installed before the enforcement of the Act should be denied.

(3) (A) The installation of a grave without the consent of the owner of the land owned by another is unlawful as it infringes on the ownership by occupying and using the land without any title. The above burial-related Acts reflects this and express provisions on prohibition. As can be seen, although the Funeral Act has a provision restricting the right of the related party to use a grave with respect to a grave installed after the enforcement of the Act, the illegality of the installation of a grave by infringing on the rights of the landowner was verified by the Burial Act for about 40 years prior to the enforcement of the Funeral Act, even if based on the pre-execution of the Civil Act.

Nevertheless, in order to recognize the prescriptive acquisition of the right to grave base solely on the ground that such unlawful act continues to exist for twenty (20) years in peace and openly, it shall be adequate and reasonable to harmonize with the overall legal order.

(B) To recognize the prescriptive acquisition of real estate ownership pursuant to Article 245(1) of the Civil Act, the possessor must not only possess it in a peaceful and openly for twenty (20) years, but also possess the intent of ownership. This provision is applicable mutatis mutandis to other property rights pursuant to Article 248 of the Civil Act. Thus, to recognize the prescriptive acquisition of other property rights, the owner shall have the substance of exercising the property right, and its intent should be recognized.

According to Article 197(1) of the Civil Act, since the possessor of an object is presumed to have occupied the object as his/her own intention, there is no responsibility to prove his/her own intention in cases where the possessor asserts the acquisition by prescription. By 197, the Supreme Court has held that even in cases where the possessor occupied the land owned by another person without permission on account of the presumption of intention to own the land, barring any special circumstance,

However, the Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997 changed the previous opinion that the possessor's possession is the possession with intention to own or with no intention to own. The decision whether the possessor is the possession with intention to own or with no intention to own should not be determined by the internal deliberation of the possessor, but should be determined externally and objectively by the nature of the title that is the cause of the acquisition of ownership or all the circumstances related to the possession. In cases where it is proved that the possessor illegally occupied the real estate owned by another person even though it was well aware that the possessor did not meet the legal requirements such as juristic act or any other legal requirements that may cause the acquisition of ownership at the time of the commencement of the possession, barring any special circumstances, the possessor rejected the ownership of the other person and did not have the intention to occupy the real estate, and thus, the presumption of possession with intention to own was broken, thereby denying the acquisition of the ownership of the

In addition, in order to recognize the acquisition by prescription of superficies for the possession of a building or other structure on another's land, the possession of the land shall not be based on the lease or loan for use, but rather on the objective indication that it falls under the possession as a superficiary. The burden of proof thereof shall be borne by the person who asserts the acquisition by prescription. Whether such requirements exist or not shall be determined by taking into account the following factors: (a) the commencement of occupancy at issue in an individual case; (b) the developments leading up to the construction of the building or other structure; (c) the relationship between the parties to the case; (d) the type and structure of the building or other structure; (e) the subsequent relationship between the parties to the case; and (e) the status of the use of the land (see Supreme Court Decision 96Da7984 delivered on December 2

In light of the same legal principle as to the prescriptive acquisition of other property rights after the en banc Decision was rendered on August 21, 1997, inasmuch as the prescriptive acquisition of ownership by an unauthorized occupancy was denied, and the same applies to the prescriptive acquisition of other property rights, barring any special circumstance, in a case where a grave is installed without permission, even though it was well aware of the landowner’s consent on the land owned by another, it cannot be deemed that the person who installed the grave has an intention to install the grave with the landowner’s permission, or to possess the grave accordingly. Nevertheless, recognizing the prescriptive acquisition of the right to grave base as to the illegally installed grave would ultimately recognize the system of prescriptive acquisition different from the prescriptive acquisition of the ownership and other property

(C) Although the prescriptive acquisition of the right to grave base is recognized as one of the custom, it is general to view that the modern system of prescriptive acquisition is reflected in the right to grave base under the customary law. However, it is doubtful whether to protect malicious illegal occupancy by treating only the right to grave base differently from the requirements for prescriptive acquisition of ownership or other property rights under the Civil Act, in conformity with the spirit of the modern Civil Act respecting private property rights and private autonomy and the purport of the en banc decision

The Supreme Court considers that the right to grave base is established and its contents are determined by the landowner’s consent and the agreement with the owner. As seen above, in the case of a grave installed without permission, there is no such an agreement with the owner, and no such external form exists. Therefore, there is no basis for establishing the right to grave base. Accordingly, according to the requirements for prescriptive acquisition of property rights other than ownership recognized by the Civil Act, it is deemed impossible to prescriptive acquisition of the right to grave base with respect to a grave installed without permission without permission, which is not the basis for establishing the right to grave base. Ultimately

In addition, as the Civil Act has been enforced and the ownership of all land, including forests and fields, is announced in the register, anyone can know the owner of forests and fields. The act of using forests and fields owned by another person without the owner's permission or installing buildings and structures on the land is not permissible as an act infringing on the ownership, and it is not different from the case where the structure is called a grave.

In the meantime, recognizing the prescriptive acquisition system with only de facto possession of a grave base for twenty (20) years is difficult to prove if a dispute arises ex post due to a lack of evidence, such as a contract, in the process of the installation of the grave. However, the right to grave base is established immediately when a grave is installed with the landowner’s consent, and the existence or possibility of such consent is merely a matter pertaining to the establishment of the right to grave base with the consent. Ultimately, it is a matter of fact-finding or interpretation of expression of intent as to whether such consent exists or not. In the event a dispute arises with the existence of the right to grave base for a long period of time, the circumstance where possession continues for a peaceful and public performance or the existence of the grave is likely to obtain the landowner’s explicit or implied consent or consent at the time of the installation of the grave. Accordingly, it is most reasonable to protect the right to grave base if it is found to be a malicious illegal occupancy notwithstanding the fact-finding in consideration of these circumstances, and it is reasonable to deny the prescriptive acquisition of the right to grave base within the scope and limit of the entire system of prescriptive acquisition.

In addition, with respect to a grave installed without the landowner’s permission, the Funeral Act permits the landowner to open the grave directly regardless of whether the time of installation is before or after the enforcement of the Funeral Act, and it also declares that the grave installed after the enforcement of the Funeral Act completely excludes the landowner’s claim for the right to use land, etc. against the landowner. As seen earlier, this reflects that the legal conviction in the previous custom allowing the prescriptive acquisition of the right to grave base for a grave installed without permission has disappeared. In light of this, in the case of a grave installed without permission and for which the prescriptive acquisition period has not yet expired until the time of the enforcement of the Funeral Act, it is difficult to view that the actual meaning of the possession of the grave installed after the enforcement of the Funeral Act is the same as the previous one, and it is unreasonable to deem that the right to grave base has been acquired solely on the basis of the continuation of occupancy without permission can be contrary to the “principle of respect for Private Property” as declared by the Funeral Act.

(D) Furthermore, the Supreme Court does not follow the provisions on superficies under the Civil Act regarding the duration of the right to grave base, but did not follow the provisions on superficies under the agreement between the parties, etc. In the absence of such special circumstances, the right holder shall continue to safeguard and serve the grave, and in the absence of such circumstances, the right to grave base shall continue to exist while the grave is in existence (see Supreme Court Decisions 81Da1220, Jan. 26, 1982; 2005Da44114, Jun. 28, 2007; 2005Da44114, Jun. 28, 2007). In light of the above, the payment of the land rent on superficies is not an element, and thus, it is not necessary to pay the land rent even in the case of prescriptive acquisition of the right to grave base (see Supreme Court Decision 94Da37912, Feb. 28, 1995).

However, recognition of prescriptive acquisition of the right to grave base, which is de facto permanent and free, solely on the fact that there was a peaceful and openly occupied possession for twenty (20) years without the landowner’s consent, is not only an excessive restriction of land ownership without any involvement or any cause attributable to the landowner, but also an excessive restriction of land ownership without any compensation for the provision of the land by the landowner. As such, it may infringe on the essential contents of the right to property guaranteed by the Constitution, such as the right to private property, which

(4) In full view of the above circumstances, even if the prescriptive acquisition of the right to grave base was recognized by reflecting the burial culture in the past when the ownership of the land, such as forest and field, was not established, it is reasonable to deem that such custom was not consistent with the overall legal order, including the constitutional provisions on property rights as seen above, the Civil Act provisions on the content of ownership and the requirements for prescriptive acquisition, and the regulatory provisions of the Funeral Act, and thus making it impossible to maintain its legitimacy and rationality, even if granting the prescriptive acquisition of the right to grave base for those graves installed without the landowner’s permission, was recognized by reflecting the burial culture in the past when the ownership of the land, such as forest and field, was not established.

C. In addition, customary law means that social norms created by repeated practices of the society have been approved and enforced as a legal norm through the legal conviction and recognition of the society. Thus, even if social norms created by repeated practices of the society have been approved as a customary law, if the members of the society have no conviction in the legal binding force of such practices, such customary law shall be denied as a legal norm (see Supreme Court en banc Decision 2002Da1178, supra).

(1) As seen earlier, the prescriptive acquisition of the right to grave base, which is a customary real right, is closely connected to the burial-centered funeral culture that had been expanded in our past society. Such funeral culture is based on the farming-oriented society, in principle, on the basis of the family system and self-sufficiency centered on the traditional family-centered culture with a great emphasis on ancestor worship, etc. In addition, most people in the past have no choice but to bury the body in the forests and fields of South and North Korea, and the social phenomenon, where the landowner explicitly raises objection thereto, can be seen as a single background.

(2) However, since the 1970s, the urbanization was rapidly made due to rapid industrialization and the subsequent economic growth. During that process, traffic and communication has developed, scientific technology and education level has increased, and the form of family has become general members of nuclear families consisting of married couple and unmarried children. A rural community centered on agricultural community based on the concept of flexible ethics, which is the background for which the right to grave base was recognized as customary, has collapsed a considerable portion of the individualism and liberalism, along with the urbanization and industrialization of our society.

Unlike in the past, there are many cases in which forest land is developed, such as the creation of housing complexes or industrial complexes, and their transactions frequent, the economic value and the need to protect ownership of forest land increases, while graves installed in forest land are considered to be a major obstacle to the development and transactions of forest land rather than the subject of protection. Furthermore, as burial-centered funeral culture continues for a long time, it has been increasing in the area of a national cemetery, thereby damaging natural scenery and environment as well as causing a shortage in living space and undermining the efficient utilization of narrow land compared to the population.

(3) Accordingly, the Burial Act was wholly amended from January 13, 2001 (No. 6158) to prevent harm to public health and sanitation, to promote the efficient utilization of land, and to address the inconvenience of the people due to the shortage of graveyard space and living space.

The Funeral Act (Act No. 6158) declared that the State and local governments are responsible for the encouragement of cremation by requiring the State and local governments to devise and implement policies for the proliferation of cremation and charnels in order to prevent any damage to the national land caused by the increase in cemeteries (Article 4). After that, the Funeral Act amended by Act No. 8489 on May 25, 2007 provides that the State and local governments shall devise and implement policies for the encouragement of cremation, inurnment and natural burial, and further, that local governments shall have crematory facilities capable of meeting the demand for cremation of local residents (Article 4(1) and (2)).

In particular, the Funeral Act, effective January 13, 2001 (Act No. 6158), limits the duration of a grave established in a public or private cemetery to 15 years in principle, but limits the duration of a grave to 3 times only once every 15 years (Article 17(1) and (2)). In addition, the Funeral Act amended by Act No. 13660, Dec. 29, 201, was amended to limit the duration of a grave to 30 years in principle and to extend it only once (Article 19(1) and (2) to 60 years.

Such provisions of the Funeral Act reflects the changes in the national consciousness of funeral culture centered on burial. As such, the purpose of maintaining the cemetery system and diversification of funeral culture is to promote cremation, natural burial, or enshrinement facilities, in line with changes in national awareness. After the enforcement of the Funeral Act, various funeral facilities, such as the increase in crematory facilities, charnel facilities, and natural burial grounds, are continuously expanding. Such changes in social awareness can also be confirmed in that new funeral method and culture are flicking in our society to the extent that the cremation rate, which was 19.1% on the average national level in 1993, was 76.9% on the national average in 2013.

In other words, the burial culture centered on traditional meaning has been weak because of the increase in interest in the establishment of a national land utilization plan for the efficient utilization of land, the proliferation of cremation and the increase of natural burial due to changes in graveyard system, etc. In addition, people's awareness of ancestor worship has been transferred to the issue of mental aspect, such as the enhancement of national income, the expansion of various funeral facilities, and the national support, beyond the outer aspect of graves, which is the removal of graves.

(4) In addition, as seen earlier, the current Civil Act, which is the basic concept of respect for private property, went into effect on January 1, 1960, and the Registration of Real Estate Act, went into effect, and the public announcement system of real estate was improved, thereby strengthening the awareness of the people’s right to land ownership. Moreover, the illegality of the installation of a grave without the landowner’s permission under the Burial Act and the Funeral Act, etc. is specified as an Act, and the cremation, etc. becomes a new funeral system. In light of the overall legal order including the Constitution, today’s current situation where it is difficult for the landowner to use the limitation of land ownership by a grave installed without the landowner’s permission, and furthermore, it is difficult to expect the protection of a illegally installed grave.

In particular, as seen earlier, the Funeral Act provides that the assertion of the right to use land against the landowner of a grave installed without permission after the enforcement of the Funeral Act completely excludes the related party’s assertion of the right to use land against the landowner. This is practically a denial of the establishment of the right to grave base or the prescriptive acquisition of the illegally installed grave. As such, the previous custom allowing such prescriptive acquisition may be deemed to have been abolished without the enforcement of the Funeral Act.

As such, the legislation that abolish the previous custom seems impossible if it did not serve as the basis for the people’s legal perception that does not permit the decline of the burial culture as seen earlier and the installation of graves without permission. Ultimately, it should be viewed as reflection of the legal conviction of the previous custom that permits the prescriptive acquisition of the right to grave base for illegally installed graves at the time of the enforcement of the Funeral Act (No. 6158) on January 13, 201. Although the Funeral Act excludes the assertion of the right to use land as to those graves installed without permission after the enforcement of the Funeral Act, it is merely the purport that the right to use land already established is not retroactively extinguished, and it cannot be seen as maintaining the legal conviction that permits the prescriptive acquisition of the new right to grave base for those graves installed without permission after the enforcement of the Funeral Act.

(5) In full view of these circumstances, the prescriptive acquisition of the right to grave base has been recognized in all cases where graves were installed on another’s land without the landowner’s permission on the ground of traditional ancestor worship, grave installation practice, etc. However, in light of the social reality different from that of the past, such as changes in the perception of funeral culture, changes in funeral system, and strengthening the landowner’s awareness of rights, it can be deemed that our community’s legal conviction in the custom of prescriptive acquisition of the right to grave base has been significantly deteriorated, and the substantial extinction of such legal conviction has been reflected in the legislation of the Funeral Act.

D. Therefore, it is reasonable to view that the previous custom recognizing the prescriptive acquisition of the right to grave base, which is de facto permanent and gratuitous, solely on the fact that there was a peaceful and open possession for twenty (20) years without the landowner’s permission, was lost its legitimacy and rationality as it goes against the overall legal order, including the Constitution respecting private property, at least until the Funeral Act (No. 6158) enters into force on January 13, 2001, as it was contrary to the overall legal order, including the Constitution respecting private property, and that the community’s conviction as to the legal binding force of such custom was lost. Accordingly, in the case of a grave for which the twenty (20)-year prescription has not yet expired as of January 13, 201, it is reasonable to deem that the said custom has lost its validity as a legal norm. As such, the prescriptive acquisition of the right to grave base may not be asserted with the previous custom on prescriptive acquisition

On the contrary, recognizing the prescriptive acquisition of the right to grave base to a person who installed a grave without permission knowing it without permission by the landowner is in violation of the legal principles of the en banc Decision, which declared that the illegal occupation is obviously illegal and continuous as a permanent right, and that the illegal occupation is not legally protected by the law by excluding the prescriptive acquisition, and as a result, a citizen under the awareness that he/she would not infringe another person's right but comply with the Burial Act and the Funeral Act and the Funeral Act continuously endeavored to hold funerals, disregarding the law-abiding spirit and mature legal consciousness of the people who dealt with the current advanced funeral culture going beyond the center of burial and thus contravenes the rule of law and the principle of justice and equity pursued by our society. Moreover, it cannot be justified under the name of custom or custom.

However, such view does not deny the prescriptive acquisition of the right to grave base in any case in which the twenty (20)-year prescription has not yet lapsed as of January 13, 2001, and on the premise that the prescriptive acquisition of the right to grave base may be recognized as well as other property rights within the permissible extent under the current legal order, as in other property rights. In other words, if a grave was installed with the permission of the person registered as the landowner, and then the registration was null and void, it can be recognized that the grave owner occupies it externally and objectively as the right to grave base, and if the possession has been maintained in peace and openly for twenty (20) years, it can be deemed that the prescriptive acquisition of the right to grave base meets the requirements under Article 248 of the Civil Act, which applied mutatis mutandis Article 245(1) of the Civil Act.

E. We examine the reasoning of the lower judgment in accordance with such legal doctrine.

(1) As the instant grave (g) was installed around 1733 and the twenty-year prescription period has elapsed before January 13, 2001, the lower court’s judgment that acquired the right to graveyard by prescription according to the previous custom is acceptable.

(2) However, it is clear that the twenty-year prescription period has not elapsed before January 13, 2001 from the date of each of the instant graves (b) installed by Defendant 2 and the instant graves (c), (d), and (f) installed by Defendant 1. As such, the previous custom on the prescriptive acquisition of the right to graveyard cannot be applied.

Nevertheless, on the premise that the former custom on the prescriptive acquisition of the right to grave base applies to each of the above graves, the lower court erred by misapprehending the Defendants’ previous custom. However, according to the record, it can be known that the instant clan was registered as the owner at the time of the installation of each of the said graves, and that the real owner thereafter was the Plaintiff. However, if the Defendants installed each of the said graves with the permission of the clan, there may be room for recognizing possession as the owner of the right to grave base. Thus, the lower court should examine the specific circumstances, etc. during which the Defendants installed each of the said graves, and examine whether the possibility of prescriptive acquisition of the right to grave base under Article 248 of the Civil Act exists.

Therefore, the lower court erred by misapprehending the legal doctrine on the validity of customary law and the prescriptive acquisition of the right to grave base, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

(3) Therefore, among the part against Defendant 1 in the lower judgment against the Plaintiff, the part concerning the instant graves (c), (d), and (f) and the part against the Plaintiff against Defendant 2 should be reversed.

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

7. Concurrence with the Majority by Justice Kim Shin and Justice Jo Hee-de

A. The Dissenting Opinion argues that the previous custom recognizing the prescriptive acquisition of the right to grave base has lost its justification and rationality against the overall legal order, including the Constitution respecting private property, at least until the Funeral Act (No. 6158) enters into force on January 13, 2001, and that as the members of our society have no conviction as to the legal binding force of such custom, it has lost its validity as a legal norm. As such, in the case of a grave for which the twenty-year prescriptive period has not yet elapsed as of January 13, 2001, the prescriptive acquisition of the right to grave base cannot be asserted with the previous custom on the prescriptive acquisition of the right to grave base, which has lost its validity.

However, for a long time, the Supreme Court has confirmed and applied the customary law on prescriptive acquisition of the right to grave base based on the custom or practice aimed at protecting the right to use land for the possession of a grave. It is difficult to readily conclude that there was a serious change in the overall legal order system, the basic ideology governing the society, or the social order, to the extent that it can be deemed that the customary law on the right to grave base, which has been recognized as effective as a firmly and firmly

B. First, we examine whether there was a meaningful change in the overall legal system surrounding the above custom to the extent that it can be deemed that the customary law on the prescriptive acquisition of the right to grave base has lost its validity as a legal norm.

(1) The Supreme Court held that if a grave was installed without the consent of the owner of another’s land before the enforcement of the current Civil Act, it is customary to acquire by prescription the right to grave base, which is a customary real right similar to superficies, if the grave was occupied for twenty (20) years, and that it would be possible to oppose a third party without registration (see Supreme Court Decisions 428Da210, Sept. 29, 195; 4290Da539, Oct. 31, 1957; 4290Da539, Oct. 31, 1957). After the enforcement of the current Civil Act, the Supreme Court held that there is no need to abolish the Supreme Court’s decision recognizing the validity of the customary law on the prescriptive acquisition of the right to grave base after the enforcement of the current Civil Act (see Supreme Court Decision 63Da157, Jul. 25, 1963; 200Da16314, Feb. 16, 1967).

(2) (A) The legal system on graveyards cannot be deemed to have a serious change to the extent that it would affect the customary law on the right to grave base.

The Supreme Court held that even if a grave installer is punished in accordance with the “Rules on Graveyards, crematoriums, Burial, and crematment”, it does not affect the acquisition of the right to grave base, which is a real right similar to superficies (see Supreme Court Decision 72Da2464, Feb. 26, 1973). In a case where a chief of a police station may order a reburial pursuant to the “Rules on Graveyards, Graveyards, Burial, and crematment”, the Supreme Court held that the acquisition of the right to grave base does not affect the acquisition of the right to grave base, as it is for the administrative purpose of regulating the disturbance of the public morals and the harm to hygiene (see Supreme Court Decision 428Da210, Sept. 29, 195).

In addition, the Burial Act before wholly amended by the Funeral Act does not have an explicit provision that does not allow the right to grave base recognized under the customary law, and the Supreme Court held that the scope of the right to grave base is not limited to the limited area of the grave as provided by the Burial Act (see, e.g., Supreme Court Decisions 94Da28970, Aug. 26, 1994; 94Da15530, Dec. 23, 1994). The Burial Act, which is limited to the regulation under the public law, does not affect the content of the right to grave base recognized under the customary law.

Furthermore, Article 2 of the Addenda of the Funeral Act (Act No. 6158) provides that Article 23(3) of the Funeral Act provides that the relative of a grave cannot claim for the prescriptive acquisition of the right to grave base, which is the land owner’s right to use the land, if the landowner opens a grave without the landowner’s permission, shall apply to the grave installed for the first time after the enforcement of the Funeral Act, thereby not excluding the application of the existing customary law to those graves installed before the enforcement of the Funeral Act.

As above, the Burial Act, etc., which had been staying in the regulation under public law, could not affect the acquisition of the right to grave base, which is the right under private law, and the Funeral Act, which was enforced on January 13, 2001 (No. 6158) does not exclude the application of the existing customary law to those graves installed before the enforcement of the Act. Thus, the enforcement of the Funeral Act, which has provisions such as restricting the claim for land use right to those graves installed without the landowner’s permission, alone, cannot be deemed to have lost the ground for existence of the customary law on

(B) The purpose of the Funeral Act is to prevent harm to public health and hygiene and contribute to the efficient utilization and public welfare by prescribing matters concerning the methods of funeral services, such as burial and cremation, and the installation, creation, and management of funeral facilities, including graveyards, etc. (Article 1). Although the Funeral Act has a provision that restricts the duration of installation of graves and limits the landowner’s claim for land use rights to those graves installed without the landowner’s permission to achieve the above legislative purpose and ensure its effectiveness, the provisions of the Funeral Act also provide that the aforementioned provision shall apply to those graves installed first after January 13, 2001, in which the Funeral Act (Act No. 6158) went into force through the Addenda. In light of these provisions, the legislative attitude of the Funeral Act seems to be to gradually resolve issues such as shortage of graveyard and efficient utilization of land due to the installation of graveyards, and to solve the problems such as the increase in the existing customary law at the time of the enforcement of the Funeral Act.

(C) If so, it is difficult to view that the right to grave base or the prescriptive acquisition thereof under the customary law recognized so far cannot be permitted for those graves already installed before the enforcement of the Funeral Act (No. 6158) on January 13, 2001. It is difficult to readily conclude that the enforcement of the Funeral Act clearly leads to a change in the overall legal order to recognize the change or extinguishment of the customary law on the right to grave base.

(3) (A) Common law is a social norm created by repeated practices of the society, which is approved and enforced as a legal norm through the legal conviction and recognition of the society (see, e.g., Supreme Court Decision 80Da3231, Jun. 14, 1983). Thus, the court cannot deny its validity by virtue of the above recognized common law.

(B) The customary law on the right to grave base is based on custom or practice based on the spirit of the spirit of the ancestor worship for our nation’s worship. Considering the specificity of “pathic” as the object of the religious and ancestor worship, it is difficult to deem that the customary law on the right to grave base is in violation of the overall legal order solely on the ground of the absolute ideology of ownership, and it is unreasonable or unreasonable.

The Supreme Court held that, inasmuch as a grave is a place where remains remains before being buried, its descendants are obliged to preserve the remains, and that even any other person shall respect its dignity (see Supreme Court Decision 4291Sang70, Oct. 8, 1959). The Supreme Court held that, in cases where a person who acquired the ownership of a forest in the location of a grave uses and takes profits from the forest, such as construction works, the person who acquired the ownership of the forest in question has a duty of care to confirm whether he/she has obtained a legitimate right to oppose the grave owner who has a real right similar to superficies (see Supreme Court Decision 78Da2338, Feb. 13, 1979).

Meanwhile, Chapter 12 of Part II of the Criminal Code provides for the crime of excavation of a grave (Article 160). The Supreme Court held that a grave which is the object of the crime of excavation of a grave refers to a place where a person’s body, remains, inducing them, etc. is buried and is the object of worship, worship, or commemoration, and that even if it is unclear who is the deceased, a grave is the object of religious worship and is the object of religious worship, and it constitutes a person who protects and serves the grave (see Supreme Court Decision 89Do2061, Feb. 13, 1990, etc.). Accordingly, the infringement of a grave which is the object of the crime of excavation of a grave constitutes a criminal act under the Criminal Act.

As above, a grave has a unique nature that makes it impossible for third parties, such as its grandchildren or landowners, to damage without permission, and the right to grave base for the protection and service of a grave is also based on such concept. In light of such characteristics of a grave or the characteristics of the right to grave base, etc., the Supreme Court: (a) recognized the validity of the right to grave base as a real right that may exclude the disturbance of an owner or a third party; and (b) interpreted that if a grave has a form that can recognize the existence of a grave from outside, such as a dyke portion, etc., the right to grave base shall be acquired without registration; and (c) the duration of the right to grave base shall continue to be in existence

(C) Meanwhile, for the following reasons, the customary law recognizing the right to grave base or the prescriptive acquisition thereof cannot be deemed justifiable or reasonable to the extent that the customary law provides for the landowner’s right to grave base or prescriptive acquisition to the point of st

Although it is true that the prescriptive acquisition of the right to grave base limits the landowner’s right as a result of the prescriptive acquisition, it is a matter naturally occurring insofar as the prescriptive acquisition system is recognized. However, the Supreme Court held that if a person who installed a grave on another’s land without the landowner’s permission occupies the base for twenty (20) years in peace and openly, the possessor shall acquire by prescription the real right similar to superficies on the land (see, e.g., Supreme Court Decision 68Da1927, 1928, Jan. 28, 1969) and does not acquire the ownership thereof (see, e.g., Supreme Court Decision 68Da1927, 1928, Jan. 28, 196). A person who installed and owns a grave on another’s land occupies another’s land only to the extent necessary for the preservation and management of the grave, barring any special circumstance, the intention of possession is not presumed (see, e.g., Supreme Court Decision 97Da3651,368, Mar. 28, 1997).

In order to acquire by prescription the right to grave base, “an ordinary temperature possession” that does not use any rashing act that is not legally acceptable and “public performance” that is not a rash occupancy (see, e.g., Supreme Court Decision 96Da14036, Jun. 14, 1996). As such, in a case where a grave is installed in a manner that is considerably unacceptable under the law, the prescriptive acquisition of the right to grave base may not be recognized. Moreover, the landowner is not only entitled to remedy the grave owner by seeking a grave digging before the expiration of the twenty-year prescription period after the installation of the grave.

In addition, the right to grave base is a right to use another person’s land only to the extent necessary to achieve the purpose of protecting and serving a grave. If it is not always necessary to attain the purpose of defending and serving a grave, the right to grave base is not allowed to expand a grave, install a stone, etc., or lay off a grave entirely (see, e.g., Supreme Court Decisions 93Da210, Jul. 16, 1993; 92Da5494, Apr. 12, 1994). No right to newly build a new grave other than an existing grave is recognized (see, e.g., Supreme Court Decisions 95Da29086, May 23, 1997; 29093, May 26, 1997). The owner of the land is restricted to the exercise of ownership of the land that became a grave base only within a considerable extent necessary for the protection and management of the grave (see, e.g., Supreme Court Decision 90Da6964, Sept. 6, 16, 20009).

Since a grave that became the object of the right to grave base does not exist or its right is naturally extinguished if the number and service of its descendants are not continued, the right to grave base does not permanently limit the landowner’s ownership.

(D) It cannot be deemed that the customary law on the prescriptive acquisition of the right to grave base has lost its validity, based on the legal doctrine of Supreme Court en banc Decision 95Da28625 Decided August 21, 1997, which held that the presumption of possession with an intention to own under Article 197(1) of the Civil Act was broken in the case of the so-called so-called “unauthorized occupancy”.

In the above en banc decision, where it is proved that the possessor occupied the real estate owned by another person without permission knowing the fact that the possessor did not have any legal act or other legal requirements that could cause the acquisition of ownership at the time of commencement of possession without permission, barring special circumstances, the possessor does not have an intention to reject the ownership of another person and to occupy it, and thus, the presumption of possession with intent to own was broken, and thus, the prescriptive acquisition of ownership under Article 245(1) of the Civil Act against the malicious illegal occupant was denied. The purport of the decision is to prevent unreasonable result that the real owner of the registered real estate easily loses ownership due to the completion of the prescriptive acquisition by the possessor.

However, the requirements for prescriptive acquisition of the right to grave base, which is a real right under the customary law acquiring only the land use right to own a grave without registration, can not be seen as equally from the foregoing perspective.

The current Civil Act adopted the so-called “the principle of form” that takes effect with the public announcement method of registration as to the acquisition, loss, and acquisition of real right to real estate by juristic act. From this point of view, considering the fact that it is not reasonable to deem that the possessor has the intention to acquire real right to real estate, such as ownership without registration, the above en banc decision is held that the presumption of possession with the intention to own was broken when the so-called “the so-called “the bad

On the other hand, in cases where it is necessary to install a grave due to the death of the land owner in a unexpected situation, there may also be cases where the grave is installed with the explicit permission of the land owner, but there may be many cases where the land owner does not object explicitly. In this context, considering the fact that the right to grave base is a real right under the customary law that can be acquired even without the registration when the land owner gave his/her consent, and the unique characteristics of the grave, which is the object of religious and ancestor worship, and the traditional values where the definition between neighbors was neglected, it is deemed that most of the installers of a grave had the intention to install a grave under the landowner’s permission, rather than the perception that the land ownership is unlawfully infringed, rather than the perception that the land ownership is unlawfully infringed, it is our legal sentiment or social reality. In addition, if the safeguard and service of a grave continues for a longer period exceeding 20 years, it would be reasonable to maintain the social order formed with respect to the grave.

Even in cases where the installer, etc. of a grave fails to prove the landowner’s permission, it is natural to recognize the prescriptive acquisition under certain conditions. If it is concluded that “no permission is obtained” for the reason that the landowner’s permission is not granted, and the prescriptive acquisition of the right to grave base is not permitted, it is the same as demanding the landowner to prove his/her intention to deliberate, such as the landowner’s permission at the time of the installation of the grave at the expiration of not less than 20 years after the installation of the grave, and in fact, it is not different from granting prescriptive acquisition of the right to grave base. However, it is doubtful whether such outcome conforms with the practices and status

Therefore, the requirements for prescriptive acquisition on the basis of the meaning of the registration system as to the real right to real estate should be clearly distinguishable from the requirements for prescriptive acquisition of the right to grave base, which is a customary real right that can be acquired without registration, by recognizing only the right to use the land for the ownership of a grave. It is difficult to see that the above en banc decision’s legal doctrine affects the validity

(4) Therefore, it cannot be deemed that there was a meaningful change in the overall legal system surrounding the above custom to the extent that the customary law on the right to grave base or the prescriptive acquisition thereof lost its justification or rationality against the overall legal order, and thus, it was impossible to maintain its validity as a legal norm.

C. Next, we examine whether there was a significant change in the perception and attitude of the members of the society, or in its social and cultural background, on the customary law on the prescriptive acquisition of the right to grave base, which recognized the validity of the customary law to the extent that the members of the society would not have any legal conviction.

(1) Unlike the sexual law, customary law is a social norm created by repeated practices of the society, and is recognized and enforced as a legal norm due to the community’s legal conviction and awareness. As such, in order to recognize that the community members lose their legal conviction and thus their legal validity, it is necessary to base empirical data, such as a customary investigation, etc. However, there is no evidence to recognize that the community members’ legal conviction in the custom on the right to graveyard, based on burial culture, etc., was extinguished or that such a custom was essentially changed until the Funeral Act (No. 6158) was enacted on January 13, 201 on the record.

(2) The national average cremation rate in 1999, prior to the enforcement of the Funeral Act (Act No. 6158), prior to January 13, 2001, is merely 30.3% and 33.7% of the national average cremation rate in 2000, and the traditional burial rate in the Republic of Korea was lowered as a funeral method prior to the enforcement of the Funeral Act. Furthermore, even if the cremation rate sharply increased in accordance with the State’s policies after the enforcement of the Funeral Act, it cannot be readily concluded that the burial culture continued from the past, such as disregarding the demand for the graves installed for burial after cremation, or that there was a change in the burial line. Rather, under our legal system allowing private graveyards, the burial culture, which is the basis of the right to grave base, still remains in our society.

In addition, the change in funeral culture is not directly connected to the extinction of legal conviction in the customary law called the right to grave base. Unlike the current generation’s perception on funeral culture and funeral methods, the customary law on the right to grave base, which is based on the ancestor worship, still remains. For example, for instance, the tradition and practice of ancestor worship in a memorial grave, i.e., the so-called “national movement,” such as New Year’s Day or Qustones, and the tradition and practice of ancestor worship in a memorial grave, are equally accepted to our people. As can be seen, it accords with our reality, deeming that the traditional perception of a grave based on ancestor worship, apart from the change in funeral culture, still remains definite, and that respect and preservation of a grave remains an important issue for our members of society.

(3) The Funeral Act, amended by Act No. 13660 on December 29, 2015, and enforced the same day, extended the period from 15 to 30 years, which was the enforcement date of the Burial Act (Act No. 6158), which was wholly amended on January 13, 2001 (Article 19(1) and later amended the Funeral Act (Article 2 of the Addenda). As above, the reason why the Funeral Act was amended is because it is difficult for the citizens to fully recognize the restriction on the installation period of a grave and there was a need to late reflect that the restriction on the installation period of a grave may cause inconvenience and inconvenience to the people if the grave is opened due to the expiration of the installation period. In other words, in relation to the reburial of a grave installed after the enforcement of the Funeral Act, administrative maintenance or social conditions in preparation for the expiration of the installation period of a grave, and thus, it is necessary to extend the installation period from 15 to 30 years.

In light of the developments leading up to the amendment of the Funeral Act, it is difficult to see that there is a significant change in perception of the members of the community regarding graves or legal relations surrounding them even after a considerable period of time has elapsed since the enforcement of the Funeral Act. Furthermore, if a change in the Supreme Court precedent results in the reburial or relocation of a grave installed before the enforcement of the Funeral Act, it is doubtful whether the social and economic cost burden or overall conditions can be met accordingly, and it is not clear whether the members of the society allowed the aforementioned result.

(4) Therefore, it cannot be deemed that there was a significant change in the perception and attitude of the members of the community, or the social and cultural background, etc. of the customary law on the prescriptive acquisition of the right to grave base.

D. (1) Even if it is possible to examine whether a customary law applied to past factual relations has its legal validity, if its legal validity is denied, the validity of the past legal relations formed over several hundredss of time according to the existing customary law has a high risk of harming the legal stability by harming the validity of the past legal relations at once. Therefore, it should be carefully determined.

In particular, if the customary law on the prescriptive acquisition of the right to grave base recognizes its validity as to the customary law on the prescriptive acquisition of the right to grave base, it may be an outcome of impairing the legal stability of the norm of prescriptive acquisition and the protection of trust of the party based on the good faith principle by retroactively extinguishing the right to grave base established upon the completion of prescriptive acquisition period.

(2) In addition, as of the end of 1999, the cemetery area falls under approximately 1% of the total land, and the number of graves remains approximately KRW 20 million, and approximately KRW 170,000 is newly occurring each year. Accordingly, it can be said that only those graves for which the twenty-year prescription period has not elapsed until January 13, 2001, the enforcement date of the Funeral Act (Act No. 6158). In light of these circumstances, in a case where the validity of the customary law on the prescriptive acquisition of the right to grave base is denied, the validity of the said customary law ought to be carefully determined. However, as seen earlier, there is no obvious reason to deem that the customary law on the right to grave base cannot be valid as a legal norm.

E. According to our traditional method of thinking: (a) it is merely a simple structure, but it is merely a finite mental place; (b) the perception that a grave should be respected as an area of noble mother’s memory while remaining in the living person; and (c) as seen above, customary law was formed as seen above. In light of the perception that a grave in the formation of such customary law would be valuating the economic value of a grave, it is difficult to readily accept a claim for the right to use the grave from a point of view that it is not easy for the members of the society to easily recognize that there is no other mental value of the grave, such as a forest and field where a modern forest ownership system has been formed, and that there is no other legal dispute over the grave. However, it is difficult to readily deny the claim for the right to use the grave as well as the right to use the grave, even in cases where it is difficult for the members of the society to easily recognize that there is no other mental value of the grave in light of the standard of absolute ownership of modern ownership, as well as the right to use the grave.

As above, I express my concurrence with the Majority Opinion.

8. As to the prescriptive acquisition of the right to grave base, the concurring opinion by Justice Kim Jae-hyung against the Dissenting Opinion is as follows.

A. While the right to grave base has functioned to legally guarantee the traditional ancestor worship, it is one of the causes hindering the efficient use of land in modern society. The right to grave base can be deemed to have played an transitionive role to elime the gap between the traditional ancestor worship and the modern land ownership system. However, the right to grave base cannot be deemed as a reasonable system. From the perspective of fairness or equity, it is difficult to find the grounds for maintaining precedents on the right to grave base, regardless of the perspective of efficiency.

It is reasonable for the Dissenting Opinion to consider a precedent on the right to grave base, which conflicts with the constitutional guarantee of property rights or the provisions on the protection of ownership under the Civil Act, and to add several opinions in supplement.

B. In a case where the parties have concluded a loan for use, lease, or other use contract on land for the purpose of owning a grave, the use relationship may arise in a variety of forms. In a case where the parties have concluded a contract for use, lease, or other use contract on land for the purpose of owning a grave, a claim and an obligation is established according to the terms of the contract, and a real right, such as superficies, is established if the parties intend to establish a real right, such as superficies. Therefore, the customary right to grave base recognized by the Supreme Court

A claim may be established according to the free agreement of the parties in accordance with the principle of freedom of contract, but a real right is restricted in accordance with the principle of real right and public disclosure. Traditionally, the right to grave base is a real right under the customary law established without registration for the purpose of owning a grave on another’s land. Article 185 of the Civil Act provides a legal principle of real right and recognizes the creation of a real right under the customary law. As such, there is no legal obstacle to recognizing the right to grave base as a real right under the customary law. In addition, the existence of a grave, in particular, the existence of a wing portion (see, e.g., Supreme Court Decision 91Da18040, Oct. 25, 1991) performs the function of public disclosure of a real right. Accordingly

However, it is a problem to distinguish whether the right to grave base is recognized as a real right under the customary law and whether it is a customary law to recognize the prescriptive acquisition of the right to grave base.It is not necessary to regard the cause of, or requirements for establishment of, the customary right to grave base as a real right.

C. As the modern forest ownership system was formed during the Japanese colonial era, the existence of a grave installed in another person’s forest land became an issue.

The precedent on the prescriptive acquisition of the right to grave base is derived from the Joseon High Court’s decision on March 8, 1927. This decision is customary to acquire, by prescription, a kind of real right similar to a superficies on another’s land when the person who installed a grave on another’s land without the landowner’s permission occupies a grave base for twenty (20) years as well as from the time when he/she occupied the grave base in peace and openly and openly. The Supreme Court has ruled in the same purport that, in the event that a grave is installed on another’s land without the landowner’s permission, the prescriptive acquisition of the right to grave base, which is a customary real right similar to superficies, is acquired by prescription if he/she occupied the grave base in peace and openly and openly for twenty (20) years, and the prescriptive acquisition of the customary right to grave base becomes recognized as a customary law.

The customary law is not only a mere wedding or moral norm, but also a degree to be observed by many people by supporting the legal conviction or legal perception of the society. Therefore, in order to establish the customary law, there should exist practices, and the legal community generally recognizes and approves such practices as legal norms. However, even if there exists a custom recognizing the right to grave base in the past in our society as a right such as a real right, there is no evidence to deem that there was a custom on the prescriptive acquisition of the customary right to grave base.

Rather, it seems that the traditional concept of graveyard and the regulation on prescriptive acquisition under the Civil Act would be reduced to reduce disputes arising between a new forest and field ownership system, and the recognition of prescriptive acquisition of the right to grave base by modifying the Civil Act to recognize prescriptive acquisition of the right to grave base. In our society, there has been long been a burial culture where one performs funeral by burying deadly in the ground the ancestor-centered culture emphasizing filial or ancestor worship for his parents, the custom-centered culture emphasizing filial or ancestor worship, the custom and spatitual culture aiming at gathering funeral, and the body or remains in the ground. Before the Japanese colonial era, the modern system was not formed, and even after the modern land ownership system was introduced, the perception of forest and field ownership was lacking even after the modern land ownership system was introduced. Accordingly, it can be deemed that the court recognized that the customary right to grave base can be acquired by prescriptive acquisition in order to protect a grave installed on another’s land without permission.

The precedents on the prescriptive acquisition of the right to grave base do not confirm the customary law existing in the society, but reflects the modern prescriptive acquisition system on the customary right to grave base established when the landowner’s consent is actually obtained. It is obvious that the requirement of “20-year prescriptive prescription” or “an ordinary temperature or public occupancy” is derived from the requirements for prescriptive acquisition under the Civil Act. Therefore, it is obvious that the prescriptive acquisition of the right to grave base should be deemed as applying or analogically applying the prescriptive acquisition provision on the right to grave base to the customary right

However, while referring to the provision on the prescriptive acquisition of the Civil Act similar to the current Civil Act regarding the prescriptive acquisition of the right to grave base, the judgment of the Joseon High Court omitted the requirement that “an intention to possess property rights” corresponding to “an intention to possess property rights” as demanded from the prescriptive acquisition of ownership. At the time, a grave at which the prescriptive acquisition of the right to grave base was at issue was installed before modern ownership of forests and fields was created. Therefore, it was difficult to express an intention to possess a grave base with the consent of the owner of forests and fields when occupying another’s forest for the purpose of owning the grave. Therefore, there is no room for understanding that the Civil Act introduced the prescriptive acquisition provision as above and recognized the prescriptive acquisition of the customary right to grave base, but did not determine “an intention to possess property rights” and specifically “an intention to possess it as a grave owner.

However, such attitude is no longer reasonable after the modern forest ownership system and the real estate registration system have been established since the enforcement of the current Civil Act. If a person who installed a grave on another’s land does not “the landowner’s intention to possess the grave base with the knowledge that he/she obtained the landowner’s permission,” the prescriptive acquisition of the right to grave base cannot be recognized. In particular, according to the Supreme Court precedents that the presumption of intention to own is broken in the case of bad faith illegal occupation, in a case where a grave is installed on another’s land without permission, the prescriptive acquisition of the right to grave base should be denied in principle. This is because

D. The customary law is not a fixed change, but a change according to the custom of the society and community consciousness. Therefore, the contents and validity of the customary law is bound to be affected by the social reality and legal order at the time of its application. If the customary law comes to be inconsistent with the overall legal order, including the provisions of the Constitution, at the time of its application due to changes in the basic ideology governing the society or in social order, the court should ensure that the customary law conforms with the current legal order by excluding the portion inconsistent with the overall legal order. In addition, even if the judgment of the court is recognized as the customary law, if it is not clear that the ground therefor is not clearly established, the court’s duty is to narrow the scope of its application. Accordingly, the prescriptive acquisition and the requirements for its establishment should be interpreted and applied so that it accords with the overall legal order, including the constitutional provisions on property rights guarantee, the provisions on ownership and the requirements for prescriptive acquisition, the provisions on the Civil Act on graveyard, the provisions on

To recognize the prescriptive acquisition of real estate ownership under Article 245(1) of the Civil Act, the possessor shall not only be obliged to occupy it in peace and openly for twenty (20) years, but also have the intention to own it. This provision is applicable mutatis mutandis to property rights other than ownership pursuant to Article 248 of the Civil Act, and thus, to recognize the prescriptive acquisition of property rights other than ownership requires the intent to hold such property rights. The prescriptive acquisition of property rights cannot be recognized on the ground that the possessor has occupied real estate in peace and openly for twenty (20) years, even though he/she

To recognize the prescriptive acquisition of superficies for the possession of a building on the land of another person, the possession of the land should not be based on the relationship of lease or loan for use, but be objectively indicated and continued to fall under the possession as a person with superficies (see, e.g., Supreme Court Decision 92Da50904, Sept. 28, 1993). Likewise, to recognize the prescriptive acquisition of the right to grave base, the possession of the person who installed the grave should be “the possession as a person holding the right to grave base”.

E. In conclusion, in order to recognize the prescriptive acquisition of the right to grave base in a case where a grave is installed on another’s land, it should be occupied in peace and openly for twenty (20) years, and in response to the demand of an occupant of real estate from the prescriptive acquisition of real estate ownership, it is necessary for the installer to think that he/she has obtained the landowner’s consent and hold possession as the owner of the right to grave base. Therefore, in cases where a grave is installed without permission, namely, in cases where a grave is installed without permission in bad faith with knowledge of the landowner’s consent, barring any special circumstance, it is difficult to deem that the installer of the grave intended to possess the grave as the owner of the land with the landowner’s

This conclusion, as the Dissenting Opinion presents detailed grounds, is aimed at reasonably regulating the legal relationship surrounding the use of graveyards in accordance with the current point of view in light of the constitutional guarantee of property rights, the provisions of the Civil Act on ownership and prescriptive acquisition, and the content and purport of the Funeral Act. The issue arising from such interpretation may be resolved by allocating the burden of proof on illegal possession in bad faith.

As above, I express my concurrence with the Dissenting Opinion.

Justices Lee Sang-hoon (Presiding Justice)