(a) The duration of the right to graveyard;

(b) the scope of the right to grave base;

A. The duration of the right to grave base shall not be governed by the provisions on superficies of the Civil Act, but shall be governed by special circumstances, such as an agreement between the parties, etc. In the absence of such circumstances, the right holder shall continue to safeguard and serve a grave, and in the absence of such circumstances, the right to grave base shall be interpreted to continue to exist while the grave remains. Therefore, it shall not be deemed five years pursuant to Article 281 of the Civil Act.

B. The right to grave base refers not only to the base itself of a grave, but also to the area including the vacant land around the base of a grave within the extent necessary for the protection and removal of the grave, which is the purpose of its establishment. The clear scope of the right to grave base is individually determined in each specific case. The latter part of Article 4(1) of the Burial and Graveyard, etc. Act and Article 2(2) of the Enforcement Decree of the same Act limit the occupied area of a grave to 20 square meters per quarter. However, the term “the occupied area of a grave” in this context refers to only the base area of a grave, and it does not refer to the cemetery area including the vacant land around the base of a grave necessary for the protection and removal of the grave, and it does not limit the scope of the right to grave base to the limited area stipulated in the above

(a)Article 185, Article 279 of the Civil Code; Article 280 and Article 281 of the Civil Code; Article 4(1) of the Burial and Graveyard, etc. Act; Article 2(2) of the Enforcement Decree of the Burial and Graveyard, etc. Act;

A. Supreme Court Decision 81Da1220 delivered on January 26, 1982 (Gong1982, 301), 92Da4587 delivered on June 9, 1992 (Gong1992, 2122). Supreme Court Decision 85Meu2496 delivered on March 25, 1986 (Gong1986, 701), 86Meu2919 delivered on February 23, 198 (Gong198, 572), 93Da219 delivered on July 16, 193 (Gong193Ha, 2287), 92Da5494 delivered on April 12, 1994 (Gong194, 194)

[Defendant-Appellee] Plaintiff 1 et al.

Defendant Kim Sung-sung, Counsel for the defendant-appellant

Seoul Civil District Court Decision 94Na4034 delivered on May 10, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Regarding ground of appeal No. 1

With respect to the duration of the right to grave base, not according to the provisions on superficies of the Civil Act, but if there are special circumstances, such as an agreement between the parties, it shall be determined by the right holder, and in the absence of such circumstances, it shall be reasonable to interpret that the right to grave base shall continue to exist while the grave is in existence (see Supreme Court Decision 81Da1220, Jan. 26, 1982). In this regard, it is reasonable that the court below rejected the Plaintiff’s assertion that the duration of the right to grave base of this case shall be deemed five years pursuant to Article 281 of the Civil Act, and there is no error in the misapprehension of legal principles as to the duration of the right to grave base, such as the theory of lawsuit,

2. As to the grounds of appeal Nos. 2 and 3

The right to grave base refers to the area including the vacant land around the base of a grave, which is the purpose of its establishment, to the extent necessary for the protection and removal of a grave, as well as the site itself, and its clear scope should be determined individually in specific cases. In addition, while the latter part of Article 4(1) of the Burial and Graveyard, and Article 2(2) of the Enforcement Decree of the same Act limit the occupied area of a grave to 20 square meters per quarter, the occupancy area of a grave here refers to only the base area of a grave, and it does not refer to the burial area including the vacant land around the base area of a grave necessary for the protection and removal of a grave outside the grave base, so the scope of the right to grave base should not be limited to the above restricted area as provided in the above Acts and subordinate statutes, and it does not affect the location and determination of the grave base as well as the present area of the forest and field in question to the extent of the above restricted area, and thus, it does not constitute an unlawful determination of all necessary parts of the right to grave base.

3. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)