[1] Scope of the right to grave base

[2] Whether a two-minute-type grave may be newly installed for a couple's joint burial within the extent of the area where the existing right to grave base is extended (negative)

[1] The right to grave base shall not only extend not only to the base of a grave itself (the bottom part of the grave), but also to the area including the vacant area around the base of a grave, within the extent necessary for the protection and removal of the grave, and its definite scope shall be separately determined in each specific case, respectively. The right to grave base is not necessarily extended to the area including the historical part.

[2] The right to grave base refers to the right to use another person’s land to the extent necessary for the purpose of protecting and winging a grave. The right to grave base refers to the right to use another person’s land to the extent that it is necessary for the purpose of attaining the said right, and even within the effective area, it does not include the right to establish a new grave outside the existing grave. As such, one side of the married couple is allowed to first die before the death and install the grave, and to the extent that the said right to grave base is within the scope that the said right

[1] Articles 185 and 279 of the Civil Act / [2] Articles 185 and 279 of the Civil Act

[1] [2] Supreme Court Decision 93Da210 delivered on July 16, 1993 (Gong1993Ha, 2287), Supreme Court Decision 92Da5494 delivered on April 12, 1994 (Gong1994Sang, 1414), Supreme Court Decision 94Da28970 delivered on August 26, 1994 (Gong1994Ha, 2528), Supreme Court Decision 94Da15530 delivered on December 23, 1994 (Gong195Sang, 638), Supreme Court Decision 97Da3651 delivered on March 28, 1997 (Gong197, 1223)

Long-term Paragraph

Kim Dong-dong Kim

Seoul District Court Decision 94Na52354, 52361 delivered on May 30, 1995

The part of the judgment of the court below regarding the removal of a grave (No. 1, a grave on the line, which connects each point of Attached Map No. 29, 30, 31, 32, and 29, is reversed, and this part of the case is remanded to the Panel Division of the Seoul District Court. The appeal by the plaintiff (Counterclaim defendant) and the remainder of the defendant (Counterclaim plaintiff) are dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant) and the costs of appeal against the main lawsuit. The costs of appeal are assessed against the defendant (Counterclaim plaintiff).

1. We examine the grounds of appeal by the Plaintiff (Counterclaim Defendant, Plaintiff hereinafter only).

A. In light of the records, it is just that the court below acknowledged the fact that the plaintiff installed a grave on November 16, 1990 for the plaintiff's mother's non-party deceased deceased's deceased deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased deceased's deceased

B. The right to grave base shall be individually determined not only in the base of a grave itself (the bottom part of the grave), but also in the area, including the vacant land around the base of the grave, within the extent necessary for the protection and removal of the grave, and its clear scope shall be separately determined in each specific case (see, e.g., Supreme Court Decisions 4294Da1451, Apr. 26, 196; 85Da2496, Mar. 25, 1986; 86Da2919, Feb. 23, 198; 86Da2919, Feb. 23, 198); and it shall not necessarily affect the right to grave base to the area including the dead part.

According to the facts duly established by the court below and the record, the above net rupture grave located in the forest of this case (Yanyang-si, Do) which is owned by the Defendant (Counterclaim Plaintiff, hereinafter the Defendant only), is about 3 meters in diameter of the lower part, about 7.07m in size, and about 14, and 15m in attached Form 2 at the time of the front judgment on the part, the length of the line connecting each point of 12m in attached Form 2 at the time of the original judgment on the part, which is about 14,15m in length, and about 2m in length connected each point of 15,16, 17, 18, 19, 20, and 14m in sequence with the indication of the same drawing, the outer rupture connected to each point of 15,16, 17, 18, 19, 20 and 14 cannot be recognized.

If the facts are as above, the court below is just to determine the scope on which the right to grave base for the above right to grave base for the above right to grave for the right to grave base in light of the location of the above right to grave base and the current status of the forest of this case, etc., as the attached Table 1 Map No. 14, 15, 16, 17, 18, 19, 20, and 14 successively connected each point in the order of the original adjudication, and there is no error of law by misunderstanding the legal principles as to the scope of the right to grave base as pointed out.

After all, we cannot accept the conclusion because it is nothing more than an attacking the judgment of the court below on the premise of the fact established by the court below and the fact inconsistent with the facts.

2. We examine the Defendant’s grounds of incidental appeal.

The right to grave base refers to the right to use another person’s land to the extent necessary to attain the purpose of defending and sing a grave (see Supreme Court Decision 93Da210, Jul. 16, 1993). The right to grave base does not include the right to construct a new grave outside the existing grave even if it is within the scope of the area under its effect. As such, one of the married couple is not allowed to install a two-minute-type grave for the sake of the other spouse who died first and died to the extent that the right to grave base has already been installed and the said grave base has already been installed.

According to the records, it is acknowledged that the above new line was newly established on November 16, 1990 after the death of the above new line, and if the facts are same, it is not allowed to newly establish the above new line, even if it is located within the above second line, within the regional boundary where the right to grave base of the above previous line was within the boundary of the above second line, the diameter of the part below the previous line is about 3 meters, and the area is about 7.07 square meters, in the form of two parallels, in a size of 7.07 square meters. The above new line is located within the boundary of the area where the right to grave base of the above previous line is within the boundary of the above second line. Therefore, it is reasonable to point this out.

Although the defendant filed an appeal against the remainder of the main lawsuit and counterclaim, it did not state the grounds for the appeal against the main lawsuit and counterclaim and did not submit a statement of grounds for appeal within the legitimate period. Therefore, this part of the incidental appeal is without merit.

3. Therefore, among the judgment of the court below, the part concerning the removal of the deceased-Deponed grave (No. 1, 299, No. 29, 30, 31, 32, and 29, which successively connected each point in the separate drawings No. 29, 30, 31, 32, and 29, is reversed, and this part of the case is remanded to the Panel Division of the Seoul District Court. The plaintiff's appeal and the defendant's remaining supplementary appeal are dismissed, respectively. The costs of appeal are assessed against the plaintiff and the defendant's appeal against the principal lawsuit are assessed against the defendant.

Justices Song Jin-hun (Presiding Justice)