[Judgment of the court below]

National Cemetery of Yongcheon National Cemetery

August 19, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of “non-approval of relocation to a place other than a national cemetery” issued to the Plaintiff on May 12, 2016 is revoked.

1. Details of the disposition;

A. The Plaintiff’s father Nonparty 1 (hereinafter “the deceased”) is the war veterans who participated in the Korean War.

B. As the Deceased died on December 1, 2013, Nonparty 2 filed a request to bury the Deceased on the same day (hereinafter “instant request”) with the Defendant on the same day. Accordingly, the Defendant, pursuant to the National Cemetery Act on the Establishment and Operation of National Cemeteries (hereinafter “National Cemetery Act”), determined the Deceased as a decedent to be buried in the National Cemetery, and laid the decedent’s remains in the National Cemetery of Yongcheon National Cemetery on December 3, 2013.

C. On April 14, 2016, the Plaintiff, a South Korean decedent, filed an application for transfer to the Defendant to a place other than a national cemetery against the Deceased. However, on May 12, 2016, the Defendant rendered a decision on non-approval of the Plaintiff’s objection on the ground that the bereaved family (spouse and two children), other than the applicant for the transfer (spouse and two children), did not submit a written consent (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In a case where the deceased wanted to be buried in a mountain before his birth, and as in this case, the plaintiff, his spouse, and other co-inheritors, who are the head of the deceased, did not reach an agreement, they have the right to manage and dispose of the harm of the deceased. Therefore, the defendant is obligated to approve the objection of this case in accordance with the plaintiff's opinion.

B. Relevant statutes

Attached Form 1 shall be as listed in attached Table 1.

C. Determination

1) The body or remains of a person buried or held in a national cemetery shall be moved to a place other than a national cemetery, if the bereaved family so wishes (Article 7(2) of the National Cemetery Act). In a case where a national cemetery files an application for a change to a place other than a national cemetery, the written application for a change to a family relation shall be accompanied by a certificate or a certified copy of the records on family relations, a well-known statement, and other documents deemed necessary by the Director of the National Cemetery Administration (Article 3(1)6 of the Enforcement Rule of the National Cemetery Act). Accordingly, the defendant collected a written consent from the bereaved family and a certified copy of his identification card, and confirmed the consent of the bereaved family, and then the defendant shall obtain the final approval for the change to a new Chapter. The head of the National Cemetery Management Office other than the defendant also receives the written consent of the bereaved family as shown

As can be seen, if the Defendant and the head of another National Cemetery change the body or remains from a national cemetery to a place other than a national cemetery (hereinafter “relic, etc.”), the reason why the bereaved family members’ consent to change the body or remains is required is that the bereaved family members are unable to bury the remains, etc. in the national cemetery after such change is made impossible (the proviso of Article 7(2) of the National Cemetery Act), and the bereaved family members who do not wish to change the body or remains, in particular, who are expected to be buried in the national cemetery after the change of the deceased’s body or remains

In addition, after the deceased's remains, etc. were buried in a national cemetery upon request by the bereaved family members of a person entitled to be buried in the national cemetery, the protection and management rights of the deceased shall be transferred to the National Cemetery Management Office and the National Cemetery Law shall be applied.

2) As seen earlier, the fact that the remains of the deceased were buried in the National Cemetery on December 3, 2013 is as follows. As such, it is deemed that the remains of the deceased were buried in the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the National Cemetery for the purpose of changing the remains of the deceased only

The Plaintiff asserts to the purport that the Supreme Court en banc Decision 2007Da27670 Decided Nov. 20, 2008, stating that the head of the deceased’s body and remains shall be succeeded to by the deceased’s body and remains as the head of the deceased, barring any special circumstance, in the absence of consultation among co-inheritors, and that the right to file an objection independently against the Plaintiff, South and North, should be recognized. However, as seen earlier, the National Cemetery Act does not provide for the scope of bereaved family members, but provides for the scope of bereaved family members under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the National Cemetery, who are related Acts and subordinate statutes, as well as the Act on the Honorable Treatment of and Support for Persons, etc. of Distinguished Services to the National Cemetery, and Article 7(2) of the National Cemetery Act unilaterally provides for the scope of bereaved family members’ rights to file an objection to the deceased’s body and remains to be buried in the National Cemetery Act, and it cannot be applied to the extent of any other State funeral Act ex post facto.

Therefore, the defendant's disposition rejecting the plaintiff's objection to the same purport is legitimate, and the plaintiff's assertion disputing this issue is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Sho-ju (Presiding Judge)