The case reversing the judgment of the court below that the extension of a grave or the installation of a stone, etc. was conducted on the land within the scope within the boundary of the right to grave base

The case reversing the judgment of the court below that the extension of a grave or the installation of a stone, etc. was conducted on the land within the boundary of the right to grave base for the previous grave

Articles 185 and 279 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1125 (Gong1985, 160) (Gong1985, 160) (Gong1986, 701) and 93Da210 (Gong193, 2287) (Gong193, 1993Ha, 2287)

[Judgment of the court below]

Defendant 1 and two others

Seoul Civil District Court Decision 91Na18865 delivered on October 16, 1992

The judgment of the court below is reversed, and the case is remanded to Seoul Civil District Court Panel Division.

We examine the grounds of appeal.

1. We examine the reasoning of the judgment below in comparison with the records, we find it reasonable that the court below recognized the fact that each of the graves of this case was installed in the above woodland with the consent of the deceased non-party 1 or non-party 2, who was the owner of the forest of this case based on macrofic evidence, and there is no violation of the rules of evidence such as theory of lawsuit.

2. In addition, Defendant 2 did not have the right to graveyard against the deceased non-party 3’s cemetery, the claim for the right to graveyard against the Plaintiff, on the premise that the Defendant is in a position to serve the said grave, is contrary to the cause of the instant claim seeking the excavation of the said grave and its transfer of the site, and thus, cannot be deemed a legitimate ground for appeal.

3. According to the reasoning of the judgment below, the court below acknowledged that the Defendants extended each of the instant graves as of March 1989 without the consent of Nonparty 2, who is the owner of the instant forest, as of March 1989, and installed stone, tombstone, candle stone, and stone embankments around them. However, even if the Defendants did not obtain the above non-party 2’s consent with respect to the expansion of the said graves and the installation of the above stone, it is reasonable to deem that the part of the land on which each of the instant graves was installed within the scope that the Defendants had already acquired the right to grave base, and therefore, the Defendants had a legitimate right to possess each of them.

However, the right to grave base refers to the right to use another person's land within the necessary scope in order to achieve the purpose of protecting and serving a grave. According to the records, it is doubtful that the front of the instant grave was no slope, and whether the installation of the said tombstone at the present location around the said grave was an essential act to preserve the said grave. In addition, in light of the size of the cemetery, the occupied area of the grave, and the installation and its installation area within the cemetery, etc. (Article 4 (1) of the Burial and Graveyard Act and Article 2 of the Enforcement Decree of the same Act, etc.), the scope of the right to grave base held by the Defendants prior to the enforcement of the said Act is limited by the Act (Article 4 (1) of the Burial and Graveyard, etc. Act and Article 2 of the same Act, etc.). Even if the scope of the right to grave base before the enforcement of the said Act does not change within the scope of the area or expansion of the previous grave and the distance of the said stone installed, it is difficult to accept the said right to grave base.

Therefore, the court below should have judged whether the above stone shed is an essential facility in preserving the above graves and specifically examined the distance of the tombstones, etc. newly installed and the grave of this case. In light of the cemetery size to the extent permitted by the law, etc., the court below should have determined whether the Defendants had a legitimate title to possess the part of the land where the above facilities are located. In light of the degree of expansion of the grave and the location of the accessory, it is reasonable to see that the part of the land where the above stone shed installed is within the scope of the existing grave's right to possess. Thus, the court below determined that the defendants had a legitimate title to possess it, which affected the conclusion of the judgment, since the court below erred by misapprehending the legal principles as to the scope of the land where the right to grave base had the effect of the right to grave base or failing to exhaust all deliberations, which affected the conclusion of the judgment.

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)