Plaintiff

Defendant 1 and one other (Law Firm Mak, Attorneys White-sung et al., Counsel for the defendant-appellant)

May 22, 2012

1. Defendant 1 buried a grave installed in the part (Ma) size 89 square meters connected with each point of 50,45, 46, 47, 48, 49, and 50 square meters of the annexed drawing among the forest land of 14257 square meters in Kuju-si, Jeonju-si, the Plaintiff, in order, and removed 2, 2, 1, 1, 1, 1, and 1,000 square meters of the annexed drawing. The above part of the land is handed over.

2. The plaintiff's claim against the defendant 2 and the remaining claim against the defendant 1 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 2 shall be borne by the Plaintiff, the part arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff, and the remainder by Defendant 1.

4. Paragraph 1 can be provisionally executed.

The main text of paragraph (1) and paragraph (1) of this Article, Defendant 2, among forest land 14257 square meters in 14257 square meters in Seoul Special Metropolitan City, shall excavate graves installed on the 90 square meters in the part inside the ship (B) which connects each point of 142,33,34,35,36,37,32, and 32, and the part of the above land shall be delivered; Defendant 1, in order of 1427 square meters in 14257 square meters in 145 square meters in 145 square meters in 145 square meters in 145 square meters in 145 square meters in 145 square meters in 145 square meters in 200, 1 square meters in 44 square meters in 200, 43,445, 40, 40, 40, and 1 square meters in 45 square meters in 20.

1. Basic facts

A. The Plaintiff’s acquisition of land ownership

1) On June 14, 1985, the head of ○○○ △△△ branch (hereinafter “instant clan”) completed the registration of preservation of ownership as to forest land of 14,257 square meters (hereinafter “instant land”) located within the original city of 14,257 square meters ( Address omitted).

2) On March 12, 2008, the Plaintiff asserted that the land of this case was owned by himself and filed a lawsuit for cancellation of registration of ownership preservation against the instant clan No. 2005Da12079, and sentenced on March 12, 2008 to the judgment in favor of the Plaintiff that “the Defendant (the instant clan) shall implement the procedure for registration of ownership transfer on the ground of the restoration of the authentic name with respect to the land of this case.” Accordingly, the instant clan appealed to the Chuncheon District Court No. 2008Na1150, but the Chuncheon District Court sentenced the dismissal of appeal on April 17, 2009, and again appealed to the Supreme Court Decision 2009Da35651 Decided August 20, 209.

3) Accordingly, on October 20, 2009, the Plaintiff completed the registration of ownership transfer on the instant land based on the restoration of real name.

4) On November 2, 2011, the Plaintiff completed the registration of partial transfer of ownership on September 7, 2011 with respect to the portion of the instant land owned by Nonparty 1, 4284.3/14 of the instant land.

(b) Current status of installation of graves;

1) At present, six graves are installed in the instant forest as follows:

- (B) A grave: A grave of Nonparty 6, the mother of Defendant 2,

- (C) A grave: A grave of Nonparty 5, Defendant 1’s increased father;

(D) A grave: A grave of Nonparty 3, the grandchildren of Nonparty 2 at the time of the instant clan;

- A grave: A grave of Nonparty 8, the father of Defendant 1

(f) A grave: A grave of Nonparty 4, who is Nonparty 2’s South-North Korea (Seoul-Nam) of the instant clan;

- (G) A grave: A grave of Nonparty 2 (Death, 1733) of the clan of this case

2) Defendant 1, as the member of the clan of this case, occupies (c), (d), (e), (f), (g) and (g) graves of this case and their bases, and Defendant 2, as the non-party 6’s children, for the purpose of conservation, management, and religious rites of (b) graves and their bases.

[Ground of recognition] A without dispute; Gap evidence Nos. 1, 2, 4; Eul evidence Nos. 1 to 9 (including provisional numbers); witness Non-party 9 and 10; each of the testimony of Non-party 10; the result of the court’s request for measurement and appraisal to Non-party 11; the purport of the whole pleadings

2. The assertion and judgment

A. Determination on the cause of the claim

According to the above facts, barring any special circumstance, the plaintiff who intends to preserve the land of this case as co-owners of the land of this case (the ownership of shares 996.7/1428) is obligated to excavate those graves (C), (d), (e), (f), (g), and (g) and the defendant 2, respectively, and transfer the bases of each grave to the base, and remove the network stone, tombstone, tombstone, tombstone, and door stone installed in the base.

B. Determination as to the defendants' assertion

1) The defendants' assertion

Defendant 2 asserts that Defendant 1 cannot comply with the Plaintiff’s claim, on the ground that Defendant 2 occupied, managed, and acquired the right to graveyard for at least 20 years all of the graves (Article 1(c), (d), (f), and (g) and acquired the right to graveyard for at least 20 years (Article 1(e) provides that Defendant 1 is the person who did not possess the grave for at least 20 years in respect of the grave).

2) Determination

A) In a case where a grave was installed on another’s land, the right to grave base, which is a customary real right similar to superficies, is acquired by prescription when possession of the grave in a peaceful and public performance for twenty (20) years. The right to grave base refers to the right to use another’s land to the extent necessary to achieve the purpose of protecting and wing a grave (see Supreme Court Decision 2011Da63017, 63024, Nov. 10, 201).

나) 이 사건에서 앞서 든 증거들을 종합하면, ① ㉠ 소외 2는 1733년경 사망하여 그 무렵 이 사건 토지에 (사) 분묘가 설치된 사실, ㉡ 소외 6은 1990. 11. 10. 사망하여 그 무렵 이 사건 토지에 (나) 분묘가 설치된 사실, ㉢ 소외 4, 소외 3의 분묘는 원주시 단계동 소재 임야에 있었으나, 그 분묘기지가 1986년경 도시개발계획에 의하여 사업부지에 편입되어 1987. 4.경 이 사건 토지로 이장되어 그 무렵 (라), (바) 분묘가 설치된 사실, ㉣ 소외 5의 분묘는 1989년 봄경 이 사건 토지로 이장되어 그 무렵 (다) 분묘가 설치된 사실{한편, 이 사건 종중이 위 1. 가.의 2)의 이 법원 2005가단12079호 사건에서 위 각 분묘의 설치 시점을 이와 일부 다르게 진술하였다는 사정(갑 제5호증의 기재)만으로는 위 사실 인정에 방해가 되지 않는다}, ② 나아가 각 분묘 설치 이후부터 원고의 이 사건 소 제기(2011. 12. 27.) 이전까지 20년 이상, 피고 1은 (다), (라), (바), (사) 분묘와 그 분묘기지를, 피고 2는 (나) 분묘와 그 분묘기지를 각 점유하여 온 사실을 인정할 수 있다. 따라서 피고들은 원고의 이 사건 소 제기 이전에 이미 분묘의 수호 및 관리를 위하여 필요한 부분인 위 각 해당 분묘기지에 대한 분묘기지권을 취득하였다고 판단되므로, 피고들의 위 주장은 타당한 이유가 있다.

C) As to this, the Plaintiff asserts to the effect that, in light of the progress of the instant case No. 2005da12079 and the overall context and purport of each of the respective decisions, “the grave installed on the instant land has been installed only in the last time except (g) and Nonparty 12, who is the natural south of Nonparty 2, the non-party 12.” However, the Plaintiff’s assertion to the effect that: (b), (c), (d), and (f) graves have not been installed for 20 years since they were installed. However, in light of the progress of the instant case No. 2005Gada12079 and the overall purport of each of the decisions, the above content may be interpreted to the extent that (b), (c), (d), (f), and (f) graves have been installed more late than that of the instant case; and (f) the Plaintiff’s assertion to the extent that (b) the above facts have not been accepted.

C. Sub-committee

Since Defendant 2 acquired each right to grave base on (B) a grave, Defendant 1 (C), (d), (f), and (g), Defendant 1 is obligated to excavate (ma) a grave that did not acquire the right to grave base to the Plaintiff and remove 2, 1, 1, 1, 1, and 1, 1, and 1, installed at that place, and deliver the base of the said grave to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. The plaintiff's claim against the defendant 2 is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Yu Dong-dong

Note 1) The term “a grave installed on board (B) part 90 square meters or more” means a grave (D), (e), (f), or (g) in the attached Form 32, 33, 34, 35, 36, 37, or 32 connected in sequence each point in the attached Form Nos. 32, 34, 35, 37, or 32; hereinafter referred to as “a grave” in the same manner.

Note 2) see Briefs dated March 20, 2012