In a case where Gap voluntarily buried a grave installed on his own land without the consent of a funeralcar Eul, etc., the case holding that he is liable to compensate for the damage suffered by Eul, who was the deceased

In a case where Gap voluntarily buried a grave installed on his own land without the consent of a funeralcar Eul, etc. and cremates the remains, the case holding that Gap is liable to compensate for the damages suffered by Eul on the ground that Eul is the deceased's master, barring special circumstances, as the deceased's master, and that Gap's unlawful damage of the grave constitutes a tort against Eul, the heir of the property used for the use of the grave, as the heir of the property for the use of the grave.

Article 1008-3 of the Civil Act

Plaintiff

Defendant (Attorney Lee Jae-chul, Counsel for defendant-appellant)

May 9, 2013

1. The defendant shall pay to the plaintiff 10,181,00 won with 5% interest per annum from January 4, 2013 to May 23, 2013, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 15,181,00 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The 549 square meters (hereinafter “instant land”) prior to the Cheong-do, Cheong-do, Cheong-do, Chungcheongnam-do, Chungcheongnam-do, Cheongbuk-do, Cheongbuk-do, was installed each of the graves (hereinafter “instant grave”) owned by Nonparty 1 and Nonparty 2 (hereinafter “the deceased”) (hereinafter “the deceased”).

B. The Defendant is the owner of the instant land. On May 21, 2012, the Plaintiff buried the instant grave without the consent of the Plaintiff, etc., and buried and buried the remains, and then buried the remains in fireworks.

C. On October 30, 2012, the Defendant was sentenced to imprisonment for 4 months with prison labor for the Incheon District Court 2012 High Court Order 9708, and one year of suspended execution, and the judgment was finalized on November 7, 2012.

D. The deceased’s persons were Nonparty 3 (the son), Nonparty 4, Defendant, Nonparty 5, Nonparty 6, and Nonparty 7. Nonparty 3, the son of the deceased, also died. Nonparty 3, the son of the deceased, was the Plaintiff (the son), Nonparty 8, Nonparty 9, and Nonparty 10.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 5 (including virtual number), Eul evidence 1 and 2, the purport of the whole pleadings

2. Determination as to the cause of action

(a) Occurrence of liability for damages;

With respect to the status of the deceased as the deceased, the previous Supreme Court held that the deceased's son shall be the deceased's son unless there are special circumstances that make it impossible to maintain the status of the person presiding over the deceased's son, if any, among co-inheritors (see Supreme Court Decision 96Nu18069, Nov. 28, 1997; Supreme Court Decision 2001Da79037, Jan. 16, 2004). In recent years, the deceased's son shall be determined by mutual agreement among co-inheritorss of the deceased, but if there is no agreement, the deceased's son shall be the deceased's son (the son, i.e., the son's son if the son has already died), and if there is no son among co-inheritors, the deceased's son becomes the deceased's son(see Supreme Court en banc Decision 2007Da76777, Nov. 27, 2008).

According to the above facts, the plaintiff is the deceased's master as the deceased's master, barring any special circumstances, and the defendant's illegal damage to the grave of this case constitutes a tort against the plaintiff, who is the successor to the property for use, as the successor to the property for use. Therefore, the defendant is liable to compensate for the damages suffered by the plaintiff due to such tort

On the other hand, the defendant asserts that there are special circumstances where the plaintiff cannot be recognized as the status of the captain of a grave since the plaintiff had a verbal disability and did not support the deceased before and after the death of the deceased, and that there was no ex post facto protection and management of the grave. As to the existence of a special circumstance where the status of the captain of a grave cannot be maintained in any case, since the institution is based on the custom, customs should be considered. Here, customs refers to the current custom being newly formed according to changes in society, not the past custom, but the custom refers to the changes in the basic ideology governing our society or social order and the custom newly formed accordingly. Thus, it is difficult to consider the plaintiff's ability to maintain the status of the deceased, such as serious illness, waste and brut life, foreign residence and living difficult for a long time, serious economic deficiency to the extent that he could not support the deceased, abuse his ordinary parent, seriously insult or management of the grave, the plaintiff's refusal or management of the deceased's intention cannot be seen as being considerably against the plaintiff's free will (see Supreme Court en banc Decision 2070Da207).

(b) Scope;

(1) Costs of reinstatement

The plaintiff asserts that the defendant should pay damages of KRW 5,181,00 to the plaintiff in the cost of restitution, since the stone shed constructed at the time of the excavation of the grave of this case was completely destroyed and the turf was also damaged.

In general, damages caused by a tort shall be deemed ordinary damages, since the market price at the time of the destruction when the goods were destroyed, and if the goods are damaged, the repair cost or the cost of restoration shall be deemed to be the ordinary damages. As such, the ordinary damages caused by the damage to the graves of this case shall be deemed to be the amount equivalent to the cost of restoration. According to the statement in the evidence No. 5, the damages of this case shall be deemed to be the amount equivalent to the cost of restoration. Accordingly, in order to restore the graves of this case, 5,181,000 won (1,350,000 won for the lock-up stack + 660,000 won for for for traw-up + 660,000 won for personnel expenses + 1,80,000 won for traw-up + 471,000 won for value-added tax + 471,000 won for damages based on the tort.

Meanwhile, the defendant asserts that it is impossible to restore the grave of this case since it was found that it was impossible to restore the body to its original state because it was found that the grave of this case was buried in the body of this case and the remains were buried in the body of this case. Thus, even if the remains were lost, the plaintiff's claim for the expenses of restoration to its original state should be recognized. Furthermore, even if the body of this case was buried in the body of this case, the body of this case, such as remains, remains, remains, and remains, were buried in the body of the body of this case, and the body of this case cannot be deemed to be a grave unless the body of this case is buried in the body of this case (see Supreme Court en banc Decision 2007Da27670, Nov. 20, 2008). The defendant's claim that the body of this case was destroyed by the death of the body of this case and the body of this case cannot be accepted for the reason that the body of this case was destroyed by the defendant's own removal of the body of this case.

(2) Consolation money

Since it is obvious in light of the empirical rule that the Plaintiff, a manager of the grave, suffered mental pain due to the Defendant’s arbitrary excavation of the grave of this case and cremation of the remains, the Defendant is obligated to bring the Plaintiff to money or consolation the suffering of the mental pain. Considering the relationship with the deceased, the shape and management status of the grave of this case, the circumstance where the Defendant excavated the grave of this case, the situation where the remains were not present, and other circumstances shown in the argument of this case, the amount of consolation money shall be set at KRW 5,00,000,000.

(3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 10,181,000 won (+5,181,000 won + 5,000,000 won) and damages for delay calculated at each rate of 5% per annum under the Civil Act from January 4, 2013 to May 23, 2013, the date following the delivery date of a copy of the complaint of this case sought by the plaintiff, which is the date of the decision, to the extent of the existence and scope of the obligation.

3. Judgment on the defendant's assertion

The defendant left a will for cremation by Nonparty 2, and the defendant opened a grave of the deceased as a manager of the grave and disinfected the remains. Thus, the defendant asserts that the defendant's act does not constitute a tort.

In light of the above, the plaintiff's act of managing and disposing of the grave of this case as the captain of the grave of this case is as seen earlier. On the other hand, the deceased's act of disposing of the body and charnel body or designating the burial site should be respected. However, the deceased's act of disposing of the body and charnel body or designating the burial site should be performed by personal appraisal, such as cryp and salivation of the deceased's body and charnel body, and the deceased's act of burying, managing, removing, and crying the body and charnel body should be succeeded to the dead's body and charnel body. Thus, the management and disposal of the deceased's body and charnel body should be done ultimately according to the deceased's intention. Furthermore, the deceased's act of disposing of the body and charnel body and burial site does not fall under the legal matters, and there is no reason to recognize the legal binding force of the deceased's act (see Supreme Court en banc Decision 2007Da27670, Nov. 20, 2008.).

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Dong-won (Presiding Judge)