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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
Facts of recognition
The plaintiff is a clan that made D as a clan, and the defendant is the descendants of the above D and the plaintiff's clan members.
The forest land of this case was under the circumstances of the defendant's Cho-, the father of the defendant, and thereafter, the registration of ownership transfer was made in F G with the defendant's father G, and the registration of ownership transfer was made in the past about April 1969.
On October 21, 1980, the Plaintiff completed the registration of transfer of ownership based on donation with respect to the above forest land.
All of the graves of this case were the graves of the Defendant’s shipbuilding, and all of them were installed in the forest of this case before 1945.
The defendant has been recently managing the instant grave installed in the forest of this case with the consent of the plaintiff.
The Plaintiff decided to sell the instant forest land in order to prepare operating expenses, and concluded a sales contract with H on April 14, 2016 on the instant forest land.
(Reasons for Recognition) Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 and 2, and the purport of the whole pleadings.
Plaintiff’s assertion
The Defendant is the owner of the instant grave located in the forest of this case owned by the Plaintiff, and the Plaintiff’s ownership over the instant forest is infringed due to the said grave. Therefore, the Defendant is obligated to transfer the said grave.
Judgment
In a case where the land which is the base of a grave is owned by a person other than the owner of a grave, if the owner of the land consents to the establishment of a grave against the owner of the grave, it shall be deemed to have established a real right similar to superficies for the owner of the grave. Therefore, in such a case, the owner of the land shall be bound to limit the exercise of ownership in the part of the land which is the base of the grave to the extent of considerable extent necessary
(2) As seen earlier, the Defendant has been managing the instant grave with the consent of the Plaintiff, and thus, the Plaintiff is above.