[1] Whether permission may be refused in a case where a serious public interest needs arise even if the land subject to an application for permission for installation of a private cemetery does not fall under a restricted area for installation under the relevant statutes (affirmative)

[2] The case holding that although an application for permission to establish a corporate cemetery does not constitute a restricted area for installation under Article 15 of the Act on Funeral Services, etc. and Article 14 of the Enforcement Decree of the same Act, the rejection of permission is lawful on the grounds of protecting residents' health and hygiene interests

[1] Article 15 of the Act on Funeral Services, etc., Article 14 of the Enforcement Decree of the Act on Funeral Services, etc. / [2] Article 15 of the Act on Funeral Services, etc., Article 14 of the Enforcement Decree of the Act on Funeral Services,

Sejong Industrial Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Noh Young-han et al., Counsel for the defendant-appellant)

Manyang Market

Busan High Court Decision 2005Nu4175 decided January 26, 2007

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

The grounds of appeal are examined.

Article 1 of the Act on Funeral Services, Etc. (hereinafter referred to as the " Funeral Act") provides that "the purpose of this Act is to prevent harm to public health and hygiene and to contribute to the efficient utilization of the national land and the promotion of public welfare by prescribing matters concerning burial, cremation and reburial, cremation, charnel facilities, and funeral parlors, and matters concerning the installation, management, etc. of graves, crematoriums, charnel facilities, and funeral parlors," and Article 4 provides that "the State and local governments shall devise and implement measures for the proliferation of cremation and charnel in order to prevent damage to the national land due to the increase of cemeteries," and Article 13 provides that "the types of "private cemeteries," which can be established and managed by persons other than the State and the heads of local governments, shall be listed in four different types, such as private cemeteries, family cemeteries, clan cemeteries, and corporate cemeteries, and those who intend to establish and manage corporate cemeteries, which are installed and managed in the same zone with many unspecified persons, shall obtain permission from the head of the competent Si/Gun/Gu, which shall be prescribed by Presidential Decree only for the establishment and management of cemeteries, etc.

In addition to the above provisions of the Funeral Act, the State and local governments bear the responsibility to prevent damage to the national land due to the increase of cemeteries, and in light of the fact that the construction of private cemeteries indiscreetly may cause environmental pollution or harm to public health and may directly impede the efficient utilization of the national land and the promotion of public welfare, etc., even if the land subject to the application for permission on the installation of private cemeteries is not expressly provided for in the relevant Acts and subordinate statutes, the competent authorities may refuse to grant the permission if deemed necessary for the significant public interest, such as preventing environmental pollution or harm to the health and hygiene of local residents, preventing damage to the national land due to the increase of cemeteries, preventing the efficient utilization of the national land, and promoting the public welfare by taking into account all the circumstances such as the current state, location, surrounding circumstances, etc. of the site for which the application for permission on

The court below acknowledged the facts as stated in its reasoning based on the employment evidence, and found that the application for permission to establish a corporate cemetery of this case does not constitute a restricted area for installation under Article 15 of the Funeral Act and Article 14 of the Enforcement Decree of the same Act, but it cannot be readily concluded that harmful substances are not emitted when a corporate cemetery is established in the above application site. The harmful substances are flowing into a neighboring river along with the surface numbers of the above application site and are likely to cause harm to public health and hygiene for local residents, and the residents' interests in health and hygiene fall under the important public interest that should be protected. In light of the above legal principles and the records, the court below's fact-finding and judgment are just and acceptable, and there is no error in the misapprehension of legal principles as to the Funeral Act, etc., or in the misapprehension of legal principles as to mistake of facts, violation of the rules of evidence, or burden of proof, as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the grounds of appeal are different cases and are inappropriate to be invoked in this case.

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

Justices Park Si-hwan (Presiding Justice)