[1] Requirements for prescriptive acquisition of the customary right to grave base and the scope of the right to grave base

[2] In a case where Gap entered into a contract for the use of grave base as to part of Eul's land owned by Eul and Eul, and the land was delivered as a result of the contract and occupied for a peaceful and public performance for a period of 20 years, thereby acquiring by prescription the right to grave base, which is a customary real right similar to superficies, for the part exceeding the contract area among the grave base, the case holding that the court below erred in the misapprehension of legal principles, even though Gap's profits equivalent to the management expenses for the excessive land should be returned to Eul as unjust enrichment

[1] In a case where a grave is installed on another’s land without the landowner’s permission, the right to grave base, which is a customary real right similar to superficies, shall be acquired by prescription when occupying the grave for twenty (20) years, and 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 the grave. The right to grave base refers not only to the base of the grave, but also to the area including the vacant area around the grave base, to the extent necessary for the purpose of installing the grave.

[2] In a case where Party A entered into a contract for the use of grave sites for part of the grave site owned by Party B and Party B, and the land was delivered to Party B for a peaceful and public performance for a period of more than 20 years, and acquired the right to grave base, which is a customary real right similar to superficies, for the part exceeding the contract area among the grave base, the case holding that the court below erred by misapprehending legal principles, since Party B paid benefits to Party B for the land exceeding the contract area in excess of the management obligation under the above contract, since Party A received benefits from the above contract’s payment without any legal cause, and thereby inflicted damages equivalent to the management expense for the land exceeding the contract area to Party B, and thus, Party A should return the excess amount to Party B as unjust enrichment, and even if Party’s prescriptive acquisition of the right to grave base was not changed, the court below erred by misapprehending legal principles.

[1] Articles 185 and 279 of the Civil Act / [2] Articles 185, 279, and 741 of the Civil Act

[1] Supreme Court Decision 96Da14036 delivered on June 14, 1996 (Gong1996Ha, 2181) Supreme Court Decision 94Da15530 delivered on December 23, 1994 (Gong195Sang, 638)

[Defendant-Appellant] Jimera Co., Ltd. (Attorney Song In-bok, Counsel for defendant-appellant)

Defendant (Law Firm Korea, Attorneys Gyeong-dae et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na115708, 115715 decided July 7, 201

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the claim for restitution of unjust enrichment among the principal claim is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal by the Plaintiff (Counterclaim Defendant) is dismissed

The grounds of appeal are examined.

1. In a case where a grave is installed on another’s land without the consent of the owner of the grave, the right to grave base, which is a customary real right similar to superficies, shall be acquired by prescription if a person occupies the base of the grave for twenty (20) years, and 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 cutting the grave (see, e.g., Supreme Court Decision 96Da14036, Jun. 14, 1996). The right to grave base refers not only to the base of the grave itself, but also to the area including the vacant area around the base of the grave within the extent necessary for the protection and removal of the grave (see, e.g., Supreme Court Decision 94Da15530, Dec. 23, 1994).

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found the facts as stated in its reasoning, and determined as follows: (a) pursuant to the grave base use contract (hereinafter “instant contract”) concluded between the Plaintiff (Counterclaim Defendant; hereinafter “the Plaintiff”) and the Plaintiff on the 4-1,289 square meters (hereinafter “the instant land”) of the 200 square meters of the area of the land in Sungnam-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and it cannot be deemed that there is an error in the misapprehension of legal principles as to the establishment and scope of the right to grave base, as otherwise alleged in the ground of appeal.

2. According to the reasoning of the judgment below and the records, although the plaintiff provided the plaintiff's management duty only for the part 200 square meters of the grave base of this case among the contracts of this case, since the time of conclusion of the contract of this case, the plaintiff was aware that the defendant had a management duty under the contract of this case with regard to the excess land of this case which is occupied and used by the defendant from the time of conclusion of the contract of this case, and had managed the whole grave base of this case including the land of this case. The plaintiff collected management expenses calculated at an ordinary unit price based on the size of the grave base every year from those who had concluded the contract of this case without paying permanent management expenses from before the contract of this case to the date of the contract of this case, and the management expenses collected by the plaintiff are the necessary expenses incidental to the possession and use of the grave base for the grave or public roads. In light of the relevant legal principles, even if the contract of this case remains effective, the plaintiff and the defendant paid benefits to the plaintiff in excess of the management obligation under the contract of this case without any legal grounds.

Nevertheless, the court below erred by misapprehending the legal principles as to unjust enrichment and adversely affecting the conclusion of the judgment, which held that the plaintiff cannot seek a return of the amount equivalent to the management expenses for the land in excess of the land in this case on the ground that the defendant acquired by prescription the right to graveyard on the land

3. Therefore, the part against the Plaintiff regarding the claim for return of unjust enrichment among the principal claim of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Si-hwan (Presiding Justice)