[1] Whether the right to grave base may be acquired by prescription in a case where a grave owner installed a grave on another’s land and occupied the grave base for twenty (20) years in peace and public performance (affirmative), and whether it may be set up against a third party without registration (affirmative)

[2] Whether the basis for the existence of the right to grave base for a grave installed before the enforcement of the Act on Funeral Services, etc., wholly amended by Act No. 6158 of Jan. 12, 200 (negative)

[3] The meaning of the right to grave base and the scope of the right to grave base

[4] In a case where a grave is destroyed but its remains are restored to the original state due to the existence of the remains and it is merely temporary destruction, whether the already recognized right to grave base remains without extinguishment (affirmative)

[1] Articles 185, 187, 245(1), 248, and 279 of the Civil Act / [2] Articles 185, 245(1), 248, and 279 of the Civil Act; Articles 23(3) (see current Article 27(3)) of the former Act on Funeral Services, etc. (Amended by Act No. 6615, Jan. 19, 200); Article 2 of the Addenda (Amended by Act No. 6612, Jan. 12, 200); Article 27(3) of the former Act on Funeral Services, etc. (Amended by Act No. 9030, Mar. 28, 2008); Article 27(2) of the Addenda (Amended by Act No. 9030, May 25, 2007); Article 27(2) of the Civil Act / [3] Article 185(1) of the Civil Act; Article 25(28(4) of the Civil Act

[1] [2] Supreme Court en banc Decision 2013Da17292 Decided January 19, 2017 (Gong2017Sang, 347) / [1/3] Supreme Court Decision 201Da63017, 63024 Decided November 10, 201 (Gong201Ha, 2562) / [4] Supreme Court Decision 2005Da44114 Decided June 28, 2007 (Gong2007Ha, 1148)

Plaintiff (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Defendant (Law Firm Hosung, Attorneys Kim Jong-hwan et al., Counsel for the defendant-appellant)

Defendant-Appellant (Law Firm Hosung, Attorneys Kim Jong-hwan et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na66600 decided June 10, 2016

All appeals are dismissed. The costs of appeal are assessed against the defendant and the intervenor.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Even in cases where a grave is installed on another’s land without the consent of the owner of the land owned by the third party, the right to grave base, which is a customary real right similar to superficies, shall be acquired by prescription, and may be contested against the third party without registration (see, e.g., Supreme Court en banc Decision 2013Da17292, Jan. 19, 2017).

The lower court determined that the Plaintiff acquired the right to grave base as to the land occupied by the instant grave within the scope necessary for the protection and removal of the instant grave, since the Plaintiff occupied the instant grave in a peaceful and public performance for twenty (20) years as the agent for removal.

Examining the above legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the existence and extinguishment of the customary law regarding the prescriptive acquisition of the right to grave base, contrary to what is alleged in the grounds of appeal

2. Regarding ground of appeal No. 2

According to the supplementary provisions of the Act on Funeral, etc. (hereinafter “the Funeral Act, regardless of whether it was before or after the amendment”), the said provisions expressly stipulate that the relative of a grave may not oppose the landowner when the landowner opens a grave installed without the landowner’s permission. As such, it cannot be deemed that the ground for the existence of the right to grave base for a grave installed before the enforcement of the Funeral Act (No. 6158) has been lost due to the enforcement of the said Act (see, e.g., Supreme Court en banc Decision 2013Da17292, Jan. 19, 201). Moreover, the right to grave base refers to the right to use another person’s land within the necessary scope in order to protect and divate a grave (see, e.g., Supreme Court en banc Decision 2013Da17292, Jan. 19, 2017). As such, the right to grave base refers to the right to use a third person’s land within the scope necessary for the purpose of installation of a grave and the grave within the necessary scope (see, 16).

The lower court determined that the Defendant’s act of excavatinging the instant grave installed prior to the enforcement of the Funeral Act (No. 6158) does not exceed 30 square meters of the area of private graveyard under Article 18(2) of the Funeral Act, which is the right to grave base, even if the Defendant had gone through the procedures prescribed in the Funeral Act, the tort against the Plaintiff, who is the right to grave base, should be constituted, and the area of private graveyard should not exceed 30 square meters. However, the lower court determined that the land occupied in the instant case cannot be deemed as exceeding the necessary scope for the number and removal of graves solely on the ground that the Defendant asserted.

In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine on Article 2 of the Addenda to the Funeral Act and Article 18(2) of the Funeral Act, contrary to what is alleged in the grounds of appeal.

3. As to the third ground for appeal

Even if the right to grave base is recognized, if a grave is destroyed due to its existence, and if it is possible to restore the grave to its original state due to its temporary destruction, the right to grave base shall be deemed to continue to exist without extinguishment (see Supreme Court Decision 2005Da44114, Jun. 28, 2007, etc.).

The lower court determined that the Plaintiff still remains holding the Plaintiff’s right to grave base, since the instant grave was opened and the form of the grave was lost, but it was possible to restore the buried remains, and that the Plaintiff could exercise its right against the Intervenor who newly acquired the ownership of the instant forest land, even without registration, since the Plaintiff acquired by prescription the right to grave base, which is a real right.

In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding the existence of the right to grave base or by misapprehending the fact regarding the possibility of restoring the grave of this case against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)