[1] The case holding that in a case where a tombstone is already installed in a tomb and a tombstone is already installed in a tomb under the Burial and Graveyard, etc. Act, it cannot be said that the person who installed the former tombstone has the right to seek removal of the tombstone

[2] Where the land which is the base of a grave owns by a person other than the owner of a grave, who is not the owner of the grave, and the owner of the land consents to the establishment of the grave, whether the right to grave base for the owner of the grave has been established (affirmative)

[3] The location of the authority to install and manage memorial devices, such as tombstones, which are annexed to a grave (i.e., third party) and other descendants, who are not the third party, in a case where the installation of memorial facilities, such as tombstones, and such installation goes against the will of the third party, whether the owner of the land in which a grave is located may seek removal as a claim for removal of disturbance based on the ownership of the land (negative with qualification)

[4] The authorized administrator of the protection of a grave (=the minor loss)

[1] The case holding that in a case where a tombstone is already installed in a tomb and a tombstone is already installed in a tomb under the Burial and Graveyard, etc. Act, it cannot be said that the installer of the former tombstone has the right to seek removal of the tombstone

[2] In a case where the land which is the base of a grave is owned by a person other than the owner of a grave, if the owner of the land consents to the establishment of a grave against the owner of the grave, it shall be deemed that the owner of the land has established a real right similar to superficies for the owner of the grave. Therefore, in such a case, the owner of the land shall be bound to limit the exercise of ownership in the land which is the base of the grave to the extent necessary for the protection and management of the grave.

[3] The authority to install and manage memorial devices, such as tombstones, which are annexed to a grave, is included in the right to safeguard and manage the grave, and therefore, even if other descendants, other than the third party, installed the facilities, such as tombstones, and they are contrary to the intention of the third party, the third party, apart from seeking removal based on the right to safeguard and manage the grave, may not seek removal as a claim for removal of disturbance, unless the size and scope of the facilities do not exceed the permissible scope of the right to grave base.

[4] In a case where there is a misunderstanding loss, it is reasonable to view that the right to safeguard and manage a grave in distress generally belongs to the son except in special circumstances where she cannot maintain his/her status as a person presiding over the grave. In order for a person who is not a son to have the right to manage and dispose of the grave as a son, it should be recognized that there are special circumstances where her son cannot maintain his/her status as a son.

[1] Article 4 (1) of the Burial and Graveyard, etc. Act, Article 2 (3) of the Enforcement Decree of the Burial and Graveyard, etc. Act / [2] Articles 185 and 279 of the Civil Act / [3] Articles 214 and 108-3 of the Civil Act / [4] Article 1008-3 of the Civil Act

[2] Supreme Court Decision 4294Da1451 delivered on April 26, 1962 (No. 10-2, 244) / [4] Supreme Court Decision 84Da1934 delivered on November 12, 1985 (Gong1986, 233) Supreme Court Decision 87Da414, 415 delivered on November 22, 198 (Gong1989, 14), Supreme Court Decision 95Da5182 delivered on September 5, 197 (Gong197Ha, 305)

Plaintiff

Defendant 1 and two others

Gwangju High Court Decision 96Na1275 delivered on January 21, 1999

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The First Ground for Appeal

According to the reasoning of the judgment below, the court below held that the plaintiff, the plaintiff of the non-party deceased, was on March 15, 1970, whose ownership transfer registration was made in the name of the plaintiff and installed the tomb of the non-party deceased on August 23, 1972, who was the plaintiff's mother who died on August 23, 1972, and the non-party deceased's third spouse was installed on the side of the non-party deceased's grave of this case, and on March 19, 194, the non-party deceased's son as the head of the non-party deceased, who was the deceased's heir, was in front of the deceased's grave of the non-party deceased and the non-party 1, the non-party 4 spouse of the non-party deceased, and did not err by misapprehending the facts of the above non-party 4's name on the ground that the non-party son's spouse was not recorded in the non-party 1's grave of this case.

In addition, according to the Burial and Graveyard, a tombstone is limited to one grave installed within a cemetery, and the instant tombstone installed by the Defendants is later than that established by the Plaintiff. However, on the sole basis of such circumstance, it cannot be said that the Plaintiff has the right to seek removal of the tombstone installed by the Defendants. Therefore, the judgment of the court below to this purport is justified, and it cannot be said that there was a violation of the rules of evidence or a misapprehension of the legal principles as to the Burial and Graveyard, etc. Act.

The ground of appeal is without merit.

The Second Ground of Appeal

In a case where the land which is the base of a grave is owned by another person who is not the owner of a grave, if the owner of the land consents to the installation of a grave against the owner of the grave, it shall be deemed to have established a real right similar to superficies for the owner of the grave. In such a case, the owner of the land shall be bound to limit the exercise of ownership over the part of the land which is the base of the grave, to the reasonable extent necessary for the protection and management of the grave. Meanwhile, the right to install and manage memorial devices, such as tombstones, which are the accessory facilities of the grave, is included in the right to safeguard and management of the grave, and thus, the person who presides over the grave in principle. Accordingly, even if other descendants who are not the owner of the grave installed the facilities, such as tombstones, and they are contrary to the intention of the third party, the third party shall not seek removal based on the right to safeguard and management of the grave, apart from the scope of the facilities or the scope of the right to grave base.

The court below's rejection of the plaintiff's claim for the removal of the tin of this case based on the land ownership is justified in accordance with the above legal reasoning and there is no error in the misapprehension of legal principles as alleged in the ground of appeal.

The lower court rejected the Plaintiff’s claim of this case based on the following facts: (a) as delegated by Nonparty 1, the son Nonparty 1, the Plaintiff claimed removal of the instant tombstone based on the status when the Plaintiff actually exercised the right to safeguard and manage the grave; and (b) as to the claim for removal of the instant tombstone, it is reasonable to deem that the right to safeguard and manage the grave in the instant case would be exclusive to the son; and (c) in order for the Plaintiff to have the right to manage and dispose of the grave as the son, the son was entitled to have the right to manage and dispose of the grave as the son (see Supreme Court Decision 95Da51182, Sept. 5, 197). In so determining, the lower court rejected the Plaintiff’s claim of this case on the ground that there were no special circumstances that it was impossible for the son to maintain the status of the son as the son.

In light of the records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles as to the rights to graves and the rights to protect and manage graves, which are not all descendants.

The ground of appeal is without merit.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-dam (Presiding Justice)