The legal nature of the order to relocate graves under Article 15 of the Burial and Graveyard, etc. Act and whether it is necessary to preserve the application for provisional disposition against the local government (negative)

The order of relocation of a grave by the head of a local government under Article 15 of the Burial and Graveyard, etc. Act is an order under public law in a case where the relative of a grave refuses to comply with it, it can be followed by administrative vicarious execution as prescribed by the Administrative Vicarious Execution Act, and it cannot be said that the local government as the subject of the rights and obligations under private law is expected to excavate, stop, work or other damage the grave concerned. Therefore, it cannot be said that the relative of a grave applied for provisional disposition against the local government to prohibit the destruction of a grave cannot be said that there is a need to preserve the grave, and it cannot be exempted from dismissal regardless of whether the head of a local government

Articles 8-2, 15, and 16 of the Burial and Graveyard, etc. Act

Supreme Court Decision 77Do3588 Decided May 9, 1978 (Gong1978, 1082) Supreme Court Decision 90Meu26942 Decided January 29, 1991 (Gong191, 869)

Re-appellant

Suwon-si

Suwon District Court Order 97Ra309 dated December 16, 1997

The reappeal is dismissed.

The grounds of reappeal are examined ex officio prior to finding them.

According to the reasoning of the order of the court below, the court below set up a tomb for the re-appellant's parent's grave in the river and field located in Suwon-si, etc. (hereinafter "the grave of this case"). On October 22, 1996, the respondent notified the re-appellant that the grave will be opened within the above public cemetery under Article 16 of the Burial and Graveyard, etc. (hereinafter "the Act"), and there is no dispute between the parties. According to the records, the above public cemetery was opened around the above public cemetery due to rapid expansion and industrialization of the city after the construction of the public cemetery, and the above public cemetery was removed from the public cemetery of this case's grave of this case's grave of this case's grave of this case's 19-2 and 15, and the above public cemetery of this case's grave of this case's grave of this case's new grave of this case's new grave of this case's new grave of this case's new grave of this case's new grave of this case's new grave of this case's new grave of this case's new grave of 16.

However, in light of the records, etc. on February 6, 1997 in the name of the Suwon Market, which was compiled with the records acknowledged by the court below, the above public cemetery in which the Suwon Market is located falls under any of the subparagraphs of Article 8-2 of the Act and the order for the relocation of the grave of this case to the re-appellant as of February 6, 1997 pursuant to Article 15 of the Act. Thus, the order for the relocation of the Suwon Market can only be expected to follow the administrative vicarious execution as prescribed by the Administrative Vicarious Execution Act in case the re-appellant refuses to comply with the order under public law, and there is no basis to regard that the Si of Suwon, the respondent of this case, as the subject of the private law, is expected to perform excavation, suspension or other damage of the grave of this case as the subject of the rights and obligations.

Therefore, the application for provisional disposition of this case filed by the Re-Appellant against the Re-Appellant cannot be deemed to have a necessity for its preservation, and it cannot be avoided regardless of whether the Suwon Market violated the administrative disposition against the Re-Appellant. Ultimately, the reasoning of the order of the court below is inappropriate, but the conclusion of dismissing the application of this case without any need to examine the grounds for reappeal is correct.

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

Justices Final Young-young (Presiding Justice)