1. The defendant shall order the plaintiff to point out 10, 11, 12, 13, and 10 of the annexed drawings among the land listed in the annexed sheet.

1. Facts of recognition;

A. On March 22, 2005, the Defendant acquired the ownership of the land indicated in the annexed sheet (hereinafter “instant land”), and immediately thereafter, installed a portion of the said land within approximately 550 square meters, such as the land indicated in the annexed sheet, and owned and managed the said grave (hereinafter “instant grave facilities”) and located within approximately 150 square meters in the area for the creation of a grave in the area for the said land (A) (hereinafter “instant grave site”).

B. On October 8, 2018, the Plaintiff purchased the pertinent land in the voluntary auction procedure for the instant land and completed the registration of ownership transfer in the name of the Plaintiff.

【Ground for Recognition: Unsatisfy Facts, Gap 1 and 2 evidence, the purport of the whole pleadings】

2. The assertion and judgment

A. According to the above facts of determination as to the cause of the claim, the Defendant owned the instant grave facilities on the instant land owned by the Plaintiff and occupied the instant grave site, barring any special circumstance, is obligated to remove the instant grave facilities as the owner of the instant land and deliver the instant grave site to the Plaintiff seeking the removal of interference based on ownership, barring any special circumstance.

B. 1) Defenses 1) The Defendant has the right to graveyard on the instant grave site among the instant land, and thus cannot respond to the Plaintiff’s claim. 2) Even in a case where a grave was installed on another’s land owned by the third party without the owner’s permission, possession of the grave for twenty (20) years of peaceful performance, the right to graveyard, which is a customary real right similar to superficies, may be acquired by prescription, and may be asserted against the third party without registration.

These legal norms are maintained up to now in respect of those graves installed before January 13, 2001, the enforcement date of the Funeral Services Act (Act No. 6158).

Supreme Court Decision 2013Da17292 Decided January 19, 2017