(영문) 수원지방법원 2017.4.20. 선고 2016나58055 판결

The Defendant shall pay to the Plaintiffs the money calculated by the ratio of KRW 13,600 per month from October 29, 2015 to the date on which the Defendant’s possession of 400 square meters of a grave base is completed or the date on which the Plaintiffs lose their ownership.

2. The plaintiffs' remaining appeals are dismissed.

3. Of the total litigation costs, 50% are borne by the Plaintiffs, and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance is revoked. The defendant shall pay to the plaintiffs the money calculated by applying the rate of KRW 23,700 per month from October 17, 2014 to October 16, 2015, the amount calculated by applying the rate of KRW 24,00 per month from October 17, 2015, the amount of KRW 4,969 per month from October 17, 2015 to the date on which the defendant's possession of a grave base of KRW 400 square meters is completed or the date on which the plaintiffs lose their ownership is forfeited.

Reasons

1. Basic facts

A. The Plaintiffs purchased the equivalent of the above shares out of the instant forest land in the Gancheon-si D Forest 4,969 square meters (hereinafter referred to as “the instant forest”), and completed the registration of ownership transfer on June 30, 2014 due to the sale by the voluntary auction conducted on June 25, 2014, in the procedures of the D Forest 4,969 square meters (hereinafter referred to as “the instant forest”). The Plaintiffs purchased the equivalent shares out of the instant forest land in the D Forest 4,120 square meters and completed the registration of ownership transfer on October 10, 2014 due to the sale by the voluntary auction conducted on October 10, 2014.

B. On the ground of 400 square meters of the forest land of this case, the defendant's tide G grave (hereinafter "the first grave of this case"), the defendant's father H grave (hereinafter "the second grave of this case"), and the defendant's father H grave of this case (hereinafter "the two grave of this case"), are installed, and the defendant protects and manages each of the graves of this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 5, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Since the Defendant installs and manages each of the instant graves on the forest land owned by the Plaintiffs, the Defendant is obligated to pay to the Plaintiffs the land rent from October 17, 2014, the following day after the date of acquisition of the Plaintiffs’ ownership on each of the instant graves, until the date of loss of the Plaintiffs’ ownership or the date of Defendant’s possession.

B. Defendant’s assertion

The Defendant acquired the right to grave base on each of the instant graves by prescription, and as long as the right to grave base is recognized, the Defendant is not obligated to pay the land rent to the Plaintiffs.

3. Determination

A. Whether the person on the right to grave base is obligated to pay the land rent

As for the duration of the right to grave base, the Supreme Court does not apply the provisions on superficies of the Civil Act, and barring any special circumstance, the right holder continues to provide the number and service of the grave and continuously recognizes it during the existence of the grave (see, e.g., Supreme Court Decision 94Da28970, Aug. 26, 1994). It is too harsh for the landowner to deny the payment of the right to grave base by applying the same legal doctrine as in the case of the right to grave base acquired by prescription that the payment of the rent cannot be made unless there is an agreement on the rent, and thus, the payment of the rent cannot be made unless there is an agreement on the rent. ② customary statutory superficies also becomes a kind of superficies, but the legal superficies recognizes the duty to pay the amount of money equivalent to the rent already occurred or in the future (see, e.g., Supreme Court Decision 94Da28970, Aug. 26, 194).

(b) Amount of land rents;

In ordinary cases, the rent of land is equivalent to the rent of the land. According to the appraiser I's appraisal result, the monthly rent of 400 square meters from October 17, 2015 to February 3, 2017 concerning the 400 square meters of land where each of the instant graves is located in Echeon-si D Forest No. 4,969m, is recognized, and the rent thereafter is confirmed to be the same amount.

Therefore, from October 29, 2015 to the date following the delivery date of a copy of the complaint of this case, the defendant is obligated to pay the amount calculated by the ratio of 13,600 won (=24,000 won x 68/120) equivalent to the ratio of shares of the plaintiffs among the monthly rent for each part of the grave of this case from October 29, 2015 to the expiration date of the loss of the plaintiffs' ownership or the defendant's possession.

4. Conclusion

Therefore, the plaintiffs' claims are justified within the above scope of recognition, and the remaining claims shall be dismissed, without merit. Since the judgment of the court of first instance is partially unfair, it shall be revoked in part of the plaintiffs' appeal and ordered to pay the above amount to the defendant, and the remaining appeal by the plaintiffs shall be dismissed. It is so decided as per Disposition.