In a case where: (a) Party A deemed that a signboard installed with a relative in connection with the business performed by a local government was his mother’s grave; and (b) received compensation for relocation after filing a report on relocation; and (c) Party B claimed the delivery of remains and the payment of consolation money, the case holding that Party A is liable to deliver the remains to Party B and pay consolation money.

In a case where Gap thought that his relative was his mother's grave in connection with the business performed by the local government, and received compensation for relocation after making a relocation to his mother's grave, and Eul filed a claim for the delivery of remains and the payment of consolation money, the case holding that in the case where Eul filed a claim for consolation money by alleging that the direction and form of burial was different from that of his mother's grave and that Eul's relative was consistent with that of his mother's ancestor, and that Eul continued to manage and dispose of Eul's remains, the above grave appears to be its relative, and Eul had the duty to deliver Eul's remains to his body, since Eul had the right to the disposal and disposal of remains as the master of the ancestor's grave located within his body, and that Gap's body had his body opened the grave without considering who was his body, it constitutes a tort against Eul, and thus Gap has the duty to pay consolation money.

Articles 751, 1008-3 of the Civil Act

Plaintiff (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

Defendant

Daegu District Court Decision 2012Gahap1044 decided September 6, 2013

June 1, 2016

1. The judgment of the court of first instance is modified as follows.

A. The defendant delivered the remains to the plaintiff, who is the wife of the non-party 2 (the father non-party 3, the newborn baby, and the death of October 5, 199) of the non-party 1, who is the 00-year old-old 24 years old-old △△△△, which was buried in the ( Address 1 omitted) of

B. The Defendant shall pay to the Plaintiff 10,000,000 won with 5% interest per annum from November 8, 2012 to June 29, 2016, and 15% interest per annum from the following day to the day of full payment.

C. The plaintiff's remaining claims are dismissed.

2. One-fourth of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The provisional execution may be effected in accordance with the first A, and the second B.

The judgment of the court of first instance is revoked. The defendant shall deliver the remains of Non-party 2 (the father, non-party 3, new life, death on October 5, 199) who was buried in Ansan-si ( Address 1 omitted) to the plaintiff. The defendant shall pay 5% per annum from the day following the delivery of a copy of the complaint of this case to the day the decision of this case is rendered, and 20% per annum from the next day to the day of full payment.

1. Basic facts

가. 안동시는 2009. 4.경 ‘하회마을 강섶 오솔길 및 전통경관 조성사업’의 일환으로 안동시 (주소 2 생략) 외 1필지 지상 하회마을 진입로에 ‘강변 물돌이길'(이하 ‘이 사건 길'이라 한다)을 조성하였다.

B. As the existence of a grave (hereinafter referred to as “instant grave”) in Andong-si ( Address 3 omitted) located within the instant road section and caused the problems to narrow the length of the instant grave, the head of the management office of the sub-village of the instant grave set up a signboard that “I am the head of the management office of the sub-village of the instant grave at the seat of the contact. I am the head of the management office of the sub-village of the instant grave.”

C. On April 209, the Defendant thought that the instant grave was one of Nonparty 4’s wife Nonparty 5, one’s mother, and had Nonparty 6, one’s own her mother, open the instant grave. In addition, on April 28, 2009, the Defendant reported that the instant grave was the deceased Nonparty 4’s wife, the Defendant’s mother, and that the instant grave was moved to the ( Address 1 omitted) of Ansan-si.

D. On April 30, 2009, the subordinate village management office paid KRW 3,370,000 to the Defendant as compensation for reburial of the instant grave.

[Reasons for Recognition] Facts without dispute, Gap evidence 2 (including branch numbers where no special indication is made; hereinafter the same shall apply), Eul evidence 2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff is the 28-year-old grandchildren of ○○○ U.S. △△△△ 28 years-old, the Plaintiff, who was the head of the instant grave, ○○ U.S. 24 years-old, Nonparty 1’s wife Nonparty 1, but was the head of the instant grave. However, the Defendant, the ○○ U.S. Do, the Do governor, who was the Do governor of ○○ U.S., led the Defendant to open the instant grave and received the reburial compensation. The Defendant transferred the remains laid in the instant grave to the Plaintiff and paid KRW 30,00,000 as consolation money.

B. Defendant’s assertion

The Defendant, as the grandchildren of Nonparty 4, 1, 1, 1, 1, 1, 1, 2, 2, 2, 3, 3, 3, 3, 4, 1, 4, 1, 1, 3, 4, 1, 3, 4, 1, 4, 1, 1, 1, 3

3. Determination as to a request for extradition of the Plaintiff’s remains

A. Determination as to whether the instant grave is Nonparty 2’s wife Nonparty 1’s grave claimed by the Plaintiff, and whether Nonparty 4’s wife Nonparty 5 asserted by the Defendant is a grave

(i)the direction of the grave and the form of a joint grave;

According to the above facts and records Nos. 1, 2 and 5, testimony of Non-party 7, and verification results of the political party 5, the following circumstances, i.e., the wife of Non-party 1, 24 years old, asserted by the Plaintiff (non-party 3, 5 years old, Non-party 1), it appears that the direction of the grave was written as volcanic dial (Oo) by the Defendant’s seat at the location of Non-party 1, Non-party 4, Non-party 4, Non-party 5, Non-party 5, Non-party 4, Non-party 5, Non-party 5, Non-party 4, Non-party 5, Non-party 1, who claimed that the grave be located in the direction of the court below's seat and the direction of the court below (OO) for which the non-party 4, the body of the grave was located in the direction of the court below to see that the body of the grave was located in the direction of the court below (O of the court below).

(ii) the management of graves;

In full view of the following circumstances that can be recognized by Nonparty 8’s testimony, namely, the Plaintiff’s relative Nonparty 9 had been in management of the instant grave without compensation from 50 to 60 years prior to the Plaintiff’s relative, and Nonparty 8, the son of Nonparty 9, was in management of the instant grave after Nonparty 9’s death, and transferred the management of the instant grave to the Plaintiff around 2004, and the Plaintiff was in management of the instant grave thereafter, it is recognized that the Plaintiff’s relative and the Plaintiff continued to manage the instant grave.

On the other hand, the defendant alleged that the grave of this case has been managed as the grave of Nonparty 4, his mother, but there is no evidence to prove that the defendant managed the grave of this case.

3) Sub-determination

According to the above facts, the direction and the form of burial of the instant grave are different from that of Nonparty 4’s wife Nonparty 5 asserted by the Defendant, and coincide with that of Nonparty 1’s wife Nonparty 2, as alleged by the Plaintiff, and as examined below, the Plaintiff, the wife Nonparty 1’s wife Nonparty 2, and the Plaintiff’s relative continued to manage the instant grave, etc., the instant grave cannot be deemed to be a grave of Nonparty 4’s wife Nonparty 5 asserted by the Defendant, and it appears to be the Plaintiff’s wife Nonparty 1’s wife, who claimed by the Plaintiff.

B. Determination as to whether the Plaintiff has the right to manage and dispose of the remains buried in the instant grave

A person’s body or charnels are fluids that can be the objects of burial, management, removal, or cultivation, and the body or charnels of a ship buried in a grave are succeeded to the person who was dead (see Supreme Court Decision 2007Da27670, Nov. 20, 200, etc.).

The above facts and evidence No. 1, and the testimony of Non-party 8, which can be recognized by comprehensively taking into account the overall purport of the pleadings, namely, the non-party 1's lineal ascendant and descendant of Non-party 24 years old who is the ○○ U.S. witness 24 years old who is the non-party 1, and Non-party 11 who is the non-party 1's death village, managed the instant grave on behalf of Non-party 10, and the non-party 1 and his wife were asked to the non-party 2. After that, in light of the following facts, the non-party 1's lineal descendant and his wife, who were the non-party 1 and his wife, and the plaintiff is the non-party 1's lineal descendant and the non-party 11's lineal descendant, the plaintiff constitutes the non-party 2's wife who was removed from the instant grave.

C. Determination as to whether the Defendant is obligated to deliver Nonparty 1’s wife Nonparty 2’s remains to the Plaintiff

As seen earlier, inasmuch as the Plaintiff had the right to manage and dispose of the remains of Nonparty 1’s wife Nonparty 2, who was removed from the instant grave, and the Defendant filed a relocation report to Nonparty 6, who was the birthee, of the instant grave, and that he was buried in the Dong-si ( Address 1 omitted), it can be deemed that the Defendant actually occupied the remains of Nonparty 1’s wife Nonparty 2, who was buried in the Dong-si ( Address 1 omitted) by de facto controlling the remains of the Defendant.

Therefore, the defendant is obligated to deliver the remains of Nonparty 1’s wife Nonparty 2 buried in the Dong-si ( Address 1 omitted) to the plaintiff.

4. Judgment on the plaintiff's claim of consolation money

As acknowledged earlier, the instant grave was owned by Nonparty 1’s wife Nonparty 2, and managed by the Plaintiff as the owner of the company. However, the Defendant did not properly examine who was the deceased, but mispercing Nonparty 4’s wife, who was his mother, to the effect that the instant grave was opened by Nonparty 6. In full view of the fact that the Plaintiff reported that the instant grave was opened as the deceased’s wife Nonparty 5, and received KRW 3,370,00 as the compensation for the relocation of the grave, the Defendant’s relocation of the instant grave was deemed to constitute a tort against the Plaintiff. Accordingly, the Defendant is obligated to pay compensation for emotional distress to the Plaintiff due to mental distress, which had been managed as the owner of Nonparty 1’s wife Nonparty 2, who was removed from the instant grave.

Furthermore, considering the following: (a) the amount of consolation money to be paid by the Defendant: (b) the background and result of the reburial of the instant grave; (c) the traditional emotional sentiments pertaining to the reburial and the funeral; (d) the relationship with the deceased; and (e) the status of the management of the instant grave and all other circumstances revealed in the pleadings, it is reasonable to determine the amount as KRW 10,00,000.

Therefore, the Defendant, as a result of tort, is obligated to pay to the Plaintiff the solatium 10,000,000 and damages for delay calculated by 15% per annum under the Civil Act from November 8, 2012 following the delivery date of a copy of the complaint of this case sought by the Plaintiff, until June 29, 2016, which is the date of the judgment of the competent court, to the extent that the Defendant disputes about the existence and scope of the obligation, and the damages for delay calculated by 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

5. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is partially accepted and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

Judges Sung-su (Presiding Judge)