[1] The elements to deny the illegality of the act of excavating a grave

[2] The case holding that where a person succeeding to Australia, who has the authority to protect, serve, manage, and dispose of a grave, finds a grave as an example of a religious and ancestor worship of the deceased body under the former Civil Act, and where a grave is excavated, the illegality of the act is excluded

[1] Article 160 of the Criminal Code, Article 996 of the former Civil Code, Article 1008-3 of the Civil Code / [2] Article 160 of the Criminal Code, Article 996 of the former Civil Code, Article 1008-3 of the Civil Code

[1] Supreme Court Decision 94Do1190 delivered on February 10, 1995 (Gong1995Sang, 1364)

Defendant

Prosecutor

Law Firm Song, Attorneys Lee Il-soo et al.

Seoul Central District Court Decision 2007No1934 Decided September 11, 2007

The appeal is dismissed.

The grounds of appeal are examined.

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 without permission against the grave without permission, against the religious order of the body. Thus, if a person who has the authority to protect, serve, manage, and dispose of the grave in law or a person who has obtained permission from the person who has the right to do so with the right to do so, finds it out for the religious and customary order of the body, the illegality of the act should be excluded. Meanwhile, the right to volunteer service, protection, and management of the grave and the right to dispose of the grave belongs to all of the clans and descendants, not to belong to the clans and descendants, but to the Australia's heir with respect to the grave exclusively (see Supreme Court Decision 94Do1190 delivered on February 10, 1995, etc.).

Examining the reasoning of the judgment below in light of the above legal principles, the court below is just in holding that the defendant's act of discovering the grave of this case and setting up the grave of this case in a charnel with the method as stated in its reasoning is dismissed as it does not go against religious and customary cultivation, and there is no error of law such as misunderstanding of legal principles as to the judgment of illegality, contrary to the allegations in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)