Plaintiff

Defendant (Attorney Hong Ho-hun et al., Counsel for defendant-appellant)

December 9, 2014

Chuncheon District Court Decision 2013Ra10945 Decided June 19, 2014

1. The part of the judgment of the court of first instance dismissing the plaintiff's claim shall be revoked.

2. The Defendant removed, among forest land 1786§³, 28, 29, 30, 31, 32, 33, 34, 25, 26, 27, and 28 of the annexed drawings among forest land 1786 square meters in Gangseo-si ( Address 1 omitted), the part which connects the Plaintiff with each point of 40, 41, 42, 43, 44, 35, 36, 37, 38, 39, 39, and 40 of the same drawings, such as the table of 14 square meters on board, 12, 8, 19, 10, 11, 24, 16, 15, 14, 16, 136, 14, 16, 14, 16, 36, 14, 16, 16, 24, 16

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 2 can be provisionally executed.

1. Purport of claim

The judgment of the court below as referred to in Paragraph (2) and the defendant shall pay to the plaintiff 1,788,690 won and from November 10, 2013 to the date when delivery of the above ship is completed, 35,980 won per month.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff filed a request for extradition and the return of unjust enrichment on the ground of the extinguishment of the right to grave base, and the request for removal of the ground salary, ground stone, ground stone, and net stone. The court of first instance rejected the request for return of unjust enrichment and dismissed the request for extradition and removal. As the Plaintiff appealed only against the dismissal of the request, the scope of the trial of this court is limited to the request for extradition

2. Facts of recognition;

This Court's explanation is based on the main text of Article 420 of the Civil Procedure Act, because the reasoning of this Court's judgment is the same as that of the part of the judgment of the first instance.

3. Determination

In cases where a grave is installed with the permission of the landowner, the landowner of the grave shall acquire the right to grave base, and comply with the agreement between the parties as to the duration of the right to grave base. However, in the absence of such circumstances, it is reasonable to interpret that the right holder continue to exist during the duration of the grave, and the grave remains in existence (see, e.g., Supreme Court Decision 2005Da44114, Jun. 28, 2007). However, this does not purport to exclude the claim for extinguishment of the right to grave base under Article 287 of the Civil Act by analogical application of Article 287 of the Civil Act. Therefore, in cases where the right holder has received a final and conclusive judgment seeking the payment of the right to grave base, if the delayed land rent is in arrears for a considerable period of not less than two years before and after the final and conclusive judgment, the landowner may claim the extinguishment of the right under Article 287 of the Civil Act (see, e.g., Supreme Court Decision 92Da4749, Mar. 12, 193).

In full view of the purport of the testimony and arguments of Non-Party 1, Non-Party 1, Non-Party 1, Non-Party 1, Non-Party 1's health team, evidence No. 1, and evidence No. 1-2's testimony and arguments returned to the instant case, the court rendered a ruling of February 20, 2013, ordering the Defendant to pay rent after April 17, 2009, which became final and conclusive at that time. After that, the Plaintiff filed a claim for objection against a grave on several occasions, but the Defendant did not pay rent, and the Plaintiff filed a claim for the extinction of the above legal superficies on November 26, 2013, and the Plaintiff filed a claim for the extinguishment of the above legal superficies on December 17, 2013. According to the above facts, according to the above recognition, the Defendant did not pay rent to the Defendant for at least two years from the date when the judgment became final and conclusive, and thus, the claim for termination of the superficies had not been effective.

Therefore, the Defendant is obligated to remove dypstones, dypstones, and gypstones on the ground of the instant case to the Plaintiff and deliver the instant part b to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's request for removal and the request for removal of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be unfair on the grounds of its conclusion, so the judgment of the court of first instance shall be revoked and the plaintiff's request for removal and removal

[Attachment Form Omission]

Suspension of Justice Lee Sung-ho (Presiding Judge)