(a) Where the illegality of the act of excavating a grave is discovered;

(b) The case holding that if the Defendant, who was de facto in charge of managing a grave, excavated a grave for religious purposes with the consent of the grandchildren who succeeded to the deceased according to the resolution of the clan, it cannot be readily concluded that the act was unlawful even if he did not obtain the consent of the grandchildren

A. The purpose of the crime of excavating a grave is to punish a person who is not authorized to do so or who is authorized to do so against the religious order and order of the body of the grave. Thus, if a person who is authorized to protect, serve, manage, and dispose of the grave without permission, or a person who is duly authorized by him/her finds it out with the religious and customary order of the body, the illegality of the act is excluded. On the other hand, the right of service, protection, management, and disposal of the grave is not belonging to both a clan nor its descendants, but exclusively belongs to the family heir with respect to the grave, and the same legal principle is not different in cases where he/she succeeds to it as an ex post facto mother.

(b) The case holding that, in a case where the defendant, who actually managed and protected a grave, and carried out a dynasium of the deceased, intended to change the funeral of the deceased in the way of cremation in accordance with the resolution of the clan, where he had the deceased's post-dys of the deceased at the time of his death, inherited him to the post-dys of the deceased, and excavated the grave for religious purposes with the consent of both grandchildren who succeeded to the deceased, even if he did not obtain the consent of the deceased before his excavation, it cannot be deemed as an unlawful act even if he did not obtain the consent of the deceased.

Article 160 of the Criminal Act; Article 996 of the former Civil Act (amended by Act No. 4199, Jan. 13, 1990); Article 1008-3 of the Civil Act

Supreme Court Decision 67Da2492 Decided December 26, 1967 (No. 1539) 80Da409 Decided October 27, 1980, Supreme Court Decision 89Do2061 Decided February 13, 1990 (Gong190,704)

Defendant

Defendant

Attorney Kim Han-sung

Daejeon District Court Decision 93No1640 delivered on April 8, 1994

The judgment of the court below is reversed and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court affirmed the first instance judgment convicting the Defendant on the ground that, in light of the fact that the protected legal interest of the crime of excavating a grave is not the right to manage and dispose of the grave, and that the Defendant’s act is trying to maintain the peace of the grave and protect the deceased’s religious worship or religious habits, without obtaining the consent of the complainants, such as the deceased and female of the deceased path in the instant grave buried in the instant grave, etc., and that, as long as the Defendant excavated the remains in the instant grave without obtaining the consent of the complainants, the Defendant was either subject to a resolution of the clan Council prior to the excavation of the grave, or obtained the consent of the deceased path, who was the descendants of the deceased path of the said grave, the Defendant’s act cannot be deemed as an act that constitutes the crime of excavating a grave and constitutes an act that has

2. However, the purport of the crime of excavating a grave is that even if a person who is not authorized or authorized to do so is found to be punished against the deceased's religious order, it shall be deemed that the crime of excavating a grave should be deemed that it is punishable only if the person who is authorized to protect, serve, manage, and dispose of the grave without permission, or the person who obtained the legitimate consent from him is found to be for the religious and customary order of the deceased's body, and the illegality of the act should be excluded. Meanwhile, if the defendant was found to be for the deceased's religious order, as well as for the service, protection, and management of the grave, the right to dispose of the grave belongs to all of the clans and its descendants, and it is not different from the above legal principle that the defendant succeeded to the deceased's religious order as an ex post facto mother (see, e.g., Supreme Court Decisions 80Da409, Oct. 27, 1980; 67Da2492, Dec. 26, 1967).

3. If so, the court below should have tried to determine whether the defendant had been engaged in the excavation of the grave of this case for religious purposes with the prior approval of the above Jin-jin, and should have found the defendant guilty only if it is against this, but it did not reach this conclusion. The court below's decision is erroneous in the misapprehension of the legal principle of the crime of excavation of a grave and the hearing, thereby affecting the conclusion of the judgment. Therefore, the argument on this point is with merit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Park Jong-ho (Presiding Justice)