Other party to the claim for relocation of graves

In order to file a claim for removal of a grave based on the ownership of forests and fields, it is reasonable to deem that the installation of a grave was accumulated against the person holding the right to manage and dispose of the grave. In the event of a son’s loss, it is reasonable to deem that the right to care and management of a grave under Article 188 generally exists against the son, except in extenuating circumstances where the son cannot maintain his/her status as the person in charge of the removal. Therefore, in order for a non-son to hold the right to manage and dispose of a grave as the son’s resident, first of all, it should be recognized that there are special circumstances where the son

Articles 214, 1008-3 of the Civil Act

Supreme Court Decision 67Da2073 Decided December 26, 1967 (Gong15-3, 418), Supreme Court Decision 84Meu1934 Decided November 12, 1985 (Gong1986, 233), Supreme Court Decision 87Meu414, 415 (Gong1989, 14) Decided November 22, 1988

Plaintiff

Defendant 1

Defendant 2 and two others

Daegu District Court Decision 95Na6142 delivered on October 20, 1995

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The Plaintiff’s appeal is dismissed, and the costs of appeal as to this part are assessed against the Plaintiff.

1. We examine the Plaintiff’s grounds of appeal.

In light of the records, the court below's rejection of the Plaintiff's assertion that Defendant 2, Defendant 3, and Defendant 4 jointly safeguard and manage the instant grave, etc. is just, and there is no violation of the rules of evidence or any misconception of facts as alleged in the judgment below.

2. We examine Defendant 1’s grounds of appeal.

According to the reasoning of the judgment below, the court below acknowledged, based on the evidence adopted, that Defendant 1, as the head of the deceased non-party 1 on September 15, 1994, installed the deceased's grave and net stone in the forest of this case, his mother, and occupied and used the part of the forest of this case while occupying and using the forest of this case. The court below held that Defendant 1 was obligated to excavate the grave and remove the stone and deliver the part of the forest of this case to the Plaintiff.

In order to file a claim for removal of a grave by using the ownership of a forest and land, the installation of a grave shall be initiated against the person who has the right to manage and dispose of the grave (see Supreme Court Decision 67Da2073, Dec. 26, 1967). In the event of a son, it is reasonable to deem that the right to safeguard and manage the grave of a vessel generally exists in the son except in special circumstances where the son’s status cannot be maintained (see, e.g., Supreme Court Decisions 84Meu1934, Nov. 12, 1985; 87Meu414, Nov. 22, 1988); and in order for a person who is not a son to have the right to manage and dispose of the grave as the son, the special circumstances should be acknowledged that the son’s status cannot be maintained.

However, according to the records, Defendant 1’s son is not the deceased Nonparty 1’s son, but the deceased’s son is the deceased Nonparty 2 who died earlier, and the deceased Nonparty 2’s son is the deceased Nonparty 3, the deceased Nonparty 1’s son. Therefore, even if Defendant 1 actually installed and manages the deceased Nonparty 1’s grave, the lower court should have determined who had the right to manage and dispose of the grave as the son after examining the existence of special circumstances where it is impossible for Nonparty 3, the deceased’s son to maintain the status of the son as the son.

Nevertheless, the court below did not follow the remaining points that Defendant 1 was the deceased non-party 1's head, and judged that the above defendant was the person who was the representative of the deceased's death and was entitled to manage and dispose of the grave immediately. Thus, the court below erred by misapprehending the facts against the rules of evidence and failing to exhaust all necessary deliberations as to the presiding official, and it is obvious that such illegality affected the judgment, and therefore, the part pointing this out in the grounds of appeal is justified.

3. Therefore, the part of the judgment of the court below against Defendant 1 is reversed and remanded to the court below. The plaintiff's appeal is dismissed and the costs of appeal against this part are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)