In a case where a part of a bereaved family member files an application for the transfer of remains buried in a national cemetery to a place other than a national cemetery without the consent of other bereaved family members, whether an administrative agency managing a national cemetery may refuse to file an application for the transfer (affirmative); and whether the scope of “bereaved family member” other than the spouse may be considered based on the principle of determination under Article 5(1) of the Act on the Honorable Treatment and Support of Persons,

The laws and regulations regarding the establishment and operation of a national cemetery do not stipulate the scope of bereaved family members, while requiring the person to be buried in the national cemetery or the person to be buried in a different place. However, the Act on the Establishment and Operation of National Cemeteries (hereinafter “National Cemetery Act”) aims at the legislative purpose of enhancing loyalty by excluding the person to be buried in the national cemetery from the category of the national cemetery (Articles 1 and 5(4)5), and Article 3(1) of the Enforcement Rule of the Act on the Establishment and Operation of National Cemetery provides that the head of the National Cemetery shall submit documents deemed necessary by the Director of the National Cemetery Management Office to the “where the decedent intends to be buried in a place other than a national cemetery” and that the head of the National Cemetery Management Office shall exercise discretion to review the appropriateness of the application under this Chapter.

In particular, the spouse of a decedent laid to rest in a national cemetery may be buried together at the request of the deceased or his/her bereaved family members (Article 5(3) of the National Cemetery Act). Once the deceased was made, the deceased cannot be buried in the national cemetery again (proviso of Article 7(2) of the same Act). Accordingly, the deceased’s spouse, who can be buried in the national cemetery, may not be buried in the national cemetery in the future. Moreover, the deceased’s surviving family members have interests in continuously keeping the deceased at the national cemetery. As such, if there is a conflict between the deceased’s surviving family members over the issue of whether there is a conflict, there may be obstacles in the appropriate operation of the national cemetery. Accordingly, if some of the bereaved family members file an application to move to a place other than the national cemetery, the administrative agency administering the national cemetery, upon examining not only the deceased’s spouse, but also within the scope of “bereaved family members” in line with the legislative purpose of properly operating the national cemetery and maintaining honor, and if all of them consent thereto, the scope of the deceased’s spouse’s application may be rejected.

Articles 1, 5(3) and (4)5, 7(2), and 11 of the Act on the Establishment and Operation of National Cemeteries; Article 12(1) and (4) of the Enforcement Decree of the Act on the Establishment and Operation of National Cemeteries; Article 3(1) of the Enforcement Rule of the Act on the Establishment and Operation of National Cemeteries; Article 5(1) of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State;

[Judgment of the court below]

President of the National Cemetery of Yongcheon;

Daegu High Court Decision 2016Nu6703 decided June 9, 2017

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

The grounds of appeal are examined.

1. A. Article 7(2) of the Act on the Establishment and Management of National Cemeteries (hereinafter “National Cemetery Act”) provides that “the body or remains of a person buried or laid in a national cemetery (hereinafter “reclaimed remains”) shall be buried in a place other than a national cemetery, if his/her bereaved family members wish so.” This provision provides that “The burial shall not be buried in a national cemetery after the burial.” This provision provides that “The bereaved family members or the head of a related agency shall file an application with the competent administrative agency, and necessary matters regarding the procedure for filing an application shall be prescribed by Presidential Decree (Article 11(1) and (2) of the National Cemetery Act).”

According to the Enforcement Decree of the Act on the Establishment and Management of National Cemeteries following delegation, bereaved families or the heads of related agencies shall submit an application for burial, etc., as prescribed by Ordinance of the Prime Minister (Article 12(1)) and determine matters necessary for the application for burial, etc. as prescribed by Ordinance of the Prime Minister (Article 12(4)). Accordingly, Article 3(1) of the Enforcement Rule of the Act on the Establishment and Operation of National Cemeteries (hereinafter “Enforcement Rule of the Act”) provides that a death certificate (Article 2) or public data (Article 3) shall be attached to an application, such as burial, etc., and documents to be attached thereto (Article 3(1) of the Enforcement Rule of the Act on the Establishment and Operation of National Cemeteries (Article 12(1)) and documents (Article 3(3). In particular, “in cases where a national cemetery is transferred to a place other than a national cemetery” provides that “(i) a family relation certificate or a certified copy of a family record, ② a statement

B. As can be seen, a national cemetery statute does not clearly stipulate the scope of bereaved families, while requiring the person to be buried in a national cemetery or to bury the remains already buried in a different place. However, the National Cemetery Act, on the other hand, “a person recognized by the Deliberative Committee on Persons Eligible for Burial to be detrimental to the honor and honor of a national cemetery” seeks legislative purposes, such as enhancing loyalty by excluding those entitled to be buried in a national cemetery (Articles 1 and 5(4)5). Unlike other cases, Article 3(1) of the Enforcement Rule of the Act provides that the head of the National Cemetery Management Office shall submit documents deemed necessary to keep the remains buried in a place other than a national cemetery, so that the head of the relevant office may exercise discretion to review the appropriateness of the request for the burial.

In particular, the spouse of a decedent laid to rest in a national cemetery may be buried together at the request of the deceased or his/her bereaved family members (Article 5(3) of the National Cemetery Act). Once the deceased was made, the deceased cannot be buried in a national cemetery again (proviso of Article 7(2) of the same Act). Accordingly, the deceased’s spouse, who can be buried in a national cemetery, may no longer be buried in the national cemetery in the future. The other deceased’s surviving family members also have interests in continuously keeping the deceased’s entitlement in the national cemetery. As such, if there is a conflict between the deceased’s bereaved family members and their bereaved family members, it may interfere with the proper operation of the national cemetery. Accordingly, if some of the bereaved family members file an application to move to a place other than a national cemetery, the administrative agency managing the national cemetery, upon examining not only the deceased’s spouse, but also within the scope of “bereaved family members” in line with the legislative purpose of properly operating the national cemetery and maintaining honor, and if all of them consent thereto, the scope of the deceased’s spouse’s entitlement or support should be denied.

2. The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

A. The Defendant, who is a national cemetery, is the administrator and operator of the National Cemetery of Yongcheon National Cemetery, has the bereaved family who applied for a change from a national cemetery to a place other than a national cemetery, submit a certificate or a certified copy of records on family relations, a written consent of bereaved family (the deceased’s spouse and children) in addition to the certificate or a certified copy of the reasoning thereof, and a written explanation.

B. The Plaintiff applied for the removal of the deceased’s body and remains to a place, other than a national cemetery, as the head of the decedent laid to rest in the National Cemetery, but the Defendant rejected the request for removal on the ground that the deceased’s surviving spouse and two remaining children were not submitted.

Based on such factual basis, the lower court determined that the Defendant’s disposition, which rejected the Plaintiff’s request for a transfer of the deceased’s remains, was lawful, on the grounds that the deceased’s remains were buried in the National Cemetery in the territory of the Republic of Korea, and the right of protection and management was transferred to the Defendant, and that the deceased’s remains may be buried in a place other than a national cemetery if the bereaved family wishes pursuant to the main sentence of Article 7(2) of the National Cemetery

3. Examining the reasoning of the judgment below in light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation and application of Article 7(2) of the National Cemetery Act as to this Chapter.

On the other hand, the deceased's body and charnels also succeed to the deceased's body and charnels equivalent to the property used for manufacturing, and the deceased's body and charnels first shall be determined by the consultation among co-inheritors of the deceased, but in the absence of consultation, unless there are any special circumstances that make it impossible to maintain the status of the deceased's body and charnels, the Supreme Court en banc Decision 2007Da27670 Decided November 20, 208 ruled that the head of the deceased becomes the deceased's body and charnels shall not be used immediately in relation to the head of the National Cemetery Management Office who acquired the right to manage and protect the remains of the deceased under the National Cemetery Act, a public law.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)