[1] Whether the charnels of remains buried in “relics” as the subject of burial include charnels (affirmative), and the standard for determining whether such burials and natural burials constitute either burials or natural burials

[2] In a case where a buried corpse or remains is cremationed and re-claimed, whether such facility can be deemed as a grave (affirmative with qualification)

[3] The meaning of "didition of farmland" under the former Farmland Act, and in a case where farmland is used for any purpose other than temporary or marina crops cultivation or perennial plants cultivation without permission, whether it constitutes an unauthorized diversion of farmland (affirmative with qualification)

[4] In a case where the Defendant was indicted of violating the Act on Funeral Services, etc. and the former Farmland Act by installing a family cemetery without permission from the competent authority, on the ground that he/she buried and buried the remains of five graves in a tree box and buried the remains in an unfurned state on the surface of the land by installing a substitute stone cover, and diverted farmland without permission, the case holding that the court below erred in the misapprehension of legal principles, etc. on the ground that the act constitutes the establishment of a cemetery, barring special circumstances where he/she met the natural burial requirements, and constitutes farmland diversion activity, and thus, the judgment below acquitted the Defendant of the facts charged

[1] In light of the provisions of Articles 2, 16, and 19 of the Act on Funeral Services, etc. (hereinafter “the Act”), and Articles 8, 15 [Attachment 2], and 21(1) [Attachment 4] 1 of the Enforcement Decree of the Act on Funeral Services, Etc. (hereinafter “Enforcement Decree”), the burial of remains on the ground is included in “rematch” among the methods of funeral. However, in order to solve the problem of erosion and damage to the natural environment, if the burial of remains in the ground and no other facility is installed, the restriction on the installation place should be mitigated, and if the facility is installed by new method of funeral, the installation of remains in the ground of burial shall be deemed to be included in “rematch” in the Enforcement Decree of the Act. Furthermore, the Act, which introduced the system, provides that the burial of remains in the ground of burial shall be included in “rematching the body or remains” in “natural burial,” and that such remains shall be included in “rematching the body or remains of burial” (Article 2(1) of the former Enforcement Decree of the Act).

[2] A grave is a facility created for the purpose of burying a corpse or remains and for the purpose of taking it as the object of a memorial, worship, or monument. Thus, even if the buried corpse or remains were to be re-reclaimed after the burial, it shall be deemed a grave still. Even in cases where the buried remains were re-re-reclaimed after cremation, it shall be deemed a grave created to be the object of a memorial, worship, or monument, barring special circumstances, such as whether the facility satisfies the natural burial requirements.

[3] "Diversion of farmland" under Article 2 subparagraph 7 of the former Farmland Act (amended by Act No. 9721 of May 27, 2009) refers to all acts of using farmland for purposes other than the cultivation of crops or the cultivation of perennial plants, such as changing the form and quality of farmland, or installing tangible objects impeding the use of farmland, etc., and the temporary use of farmland for other purposes is limited to cases where permission for temporary use is obtained from the competent authorities, such as the Mayor, etc. on the condition that farmland is restored to farmland after being used for a specific period for the purpose stipulated in Article 36 of the Farmland Act and restored to farmland. In light of the above, even if farmland is temporarily or temporarily used for any purpose other than the cultivation of marina crops or perennial plants without permission, it shall be deemed that it constitutes diversion of farmland without permission, unless

[4] In a case where the Defendant was indicted of violation of the Act on Funeral Services, etc. and the former Farmland Act (amended by Act No. 9721 of May 27, 2009), on the ground that the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part.

[1] Article 2 subparags. 1, 3, 6, 7, and 13, Articles 10, 14(3), 19, and 39 subparag. 1 of the Act on Funeral Services, Etc.; Articles 16 and 42(1)6 of the former Act on Funeral Services, Etc. (Amended by Act No. 11253, Feb. 1, 2012); Articles 7(1)(b), 8, and 15 [Attachment Table 2] Article 21(1) [Attachment Table 4] of the former Enforcement Decree of the Act on Funeral Services, Etc. (Amended by Presidential Decree No. 23996, Jul. 31, 2012); Article 21(2) [Attachment Table 4] subparag. 1 of the Farmland Act / [2] Article 2 subparag. 1 of the former Act on Funeral Services, etc. (Amended by Act No. 11253, Feb. 3, 2017>

[2] Supreme Court Decision 89Do2061 delivered on February 13, 1990 (Gong1990, 704)

Defendant

Prosecutor

Changwon District Court Decision 2009No2174 decided April 9, 2010

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the violation of the Act on Funeral Services, etc.

A. On June 24, 2008, the lower court determined that, apart from the fact that the Defendant buried the farmland in this case on the same day (3.8m x 21.6m) with the size of five graves installed in another place on June 19, 2008, five graves (in the case of remains buried in this grave, 1963, 1976, 1985, 1996) were buried in the grave, and that the Defendant’s act of burying the remains in this case on the same day as of June 24, 2008 without the permission of the competent authorities, and that the Defendant’s act of burying the remains in this case on the same day as of the street tree box, it is difficult to readily conclude that the remaining remains in the same part of the grave, namely, “the act of burying the remains buried in this case without the size of the remains buried in the grave as of June 19, 2008.”

B. However, we cannot accept the above judgment of the court below.

The natural funeral was not originally stipulated as the method of separate funeral, but the former Act on Funeral Services, etc. was wholly amended by Act No. 8489 on May 25, 2007 to minimize its side effects (hereinafter referred to as the "Act" and the Enforcement Decree thereof).

According to the above amended laws and regulations, a natural burial shall be deemed to be “the burial of the remains buried under or around the bottom of trees, flowerss, grass, etc.” (Article 2 subparag. 3 of the Act), and the method thereof shall be buried in the body of the remains buried at a depth of not less than 30 cm from the ground, but shall be buried in a mixture with soil if the container is not used, and the size of the container shall be not more than 30 cm from the width, height, and height of each 30 cm or less of each 30 cm for the promotion of Saving and Recycling of Resources” (Article 8 of the Enforcement Decree of the Act on the Promotion of Saving and Recycling of Resources).

한편 묘지는 시체나 유골을 매장하는 시설인 분묘를 설치하는 구역을 말하고, 이는 도로나 인가밀집지역 등으로부터 일정 거리 이상 떨어진 곳에 설치하여야 하고 설치기간도 최장 60년으로 제한되는 등 규제가 있는 반면( 법 제2조 , 제19조 , 시행령 제15조 및 [별표 2] 등 참조), 자연장지는 그러한 제한이 없거나 크게 완화되어 있다. 다만 자연장지에는 사망자 및 연고자의 이름 등을 기록한 표지와 편의시설 외의 시설을 설치할 수 없고, 가족자연장지의 경우에도 허용되는 시설은 개별표지 또는 공통표지뿐이며, 그 중 개별표지의 면적은 150㎠ 이하, 공동표지의 면적은 안치 및 예정 구수를 고려하여 알맞은 크기로 주변환경과 조화를 이루도록 하여야 한다( 법 제16조 , 시행령 제21조 제1항 [별표 4] 제1호).

In light of the above various provisions, funeral service from the past is included in the burial among the methods of funeral service. However, in order to sleep the national land and solve the problem of destroying the natural environment, the system for natural burial was newly established by means of new funeral, easing the restriction on the place where the body can be installed and preventing the restriction on the installation period from being installed in a case where any facility other than the sign is not installed. Even after the introduction of the natural burial system, the law maintains the previous provisions providing that the body or remains shall be buried in the ground (Article 2 subparagraph 1 (b) of the Enforcement Decree) and the remains to be buried in the burial (Article 7 (1) (b) of the Enforcement Decree), and the form of the grave installed in the burial shall be included in the burial of remains to be buried in the burial site (Article 15 [Attachment 15 [Attachment 2] of the Enforcement Decree, and the part of the remains to be buried in the burial site shall be considered in the case where the body or remains is buried in the natural burial site and the part of the remains to be buried in the burial site.

On the other hand, a grave is a facility created for the purpose of burying a corpse or remains and for the purpose of using it as the object of a memorial, worship, or monument. Thus, even if the buried corpse or remains were to be buried later, it is still deemed a grave (see Supreme Court Decision 89Do2061, Feb. 13, 1990). In a case where the buried remains are buried and re-re-re-claimed after cremation them, the grave shall be deemed to be a grave created for the purpose of a memorial, worship, or monument, unless the facility satisfies the natural funeral requirements.

In light of the reasoning of the judgment below in light of the above legal principles, the judgment of the court below that “it is difficult to view that the remains are contained in the body used by the defendant,” which held that the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the defendant was buried in wooden boxes on the premise that the body part of the body part of the body part of the body part of the defendant did not constitute a grave. However, even if the body part of

나아가 원심이 배척하지 아니한 증거에 의하면, 피고인은 2008. 6. 24.경 이 사건 농지에 화장한 유골 5기를 일정한 간격으로 묻은 후 봉분을 만들지는 않았으나, 묻은 곳마다 자연장에서 허용되는 사망자 및 연고자의 이름 등을 기록한 면적 150㎠ 이하의 표지라고는 볼 수 없는 상당한 크기의 대리석 덮개들을 지표면에 설치하고 그 주위에 잔디를 심었으며, 위 5기를 매장한 전체 구역이 주변 토지와 구분되도록 경계석을 둘러치는 형태로 조성하였고, 2008. 6. 29.경 피고인의 친척들이 위 시설에 모여 제사를 올리기도 한 사실, 그 후 2008. 7. 4.경 피고인이 분묘를 설치하여 농지를 전용하였다는 이유로 사천시장으로부터 이 사건 농지에 설치한 시설을 이전하고 농지를 원상회복하라는 취지의 원상회복 명령을 받은 사실을 알 수 있고, 위 사실에 의하면, 피고인은 애초에 이 사건 농지에 묘역을 조성하려는 의도로 위와 같은 시설을 설치하였다가 원상회복 명령 등 단속 때문에 묘역에 흙을 덮은 후 경작을 하게 된 것으로 보인다.

In addition, even if there remains no remains in part of the five grave days for which the defendant opened a grave and only soil remains, in light of the fact that the defendant collected it for the purpose of the production and performed cremation for the purpose of the production and buried it on the ground with adequate facilities, it is reasonable to view that the remains have been buried in the ground.

If so, the court below should have deliberated on whether the defendant's facilities installed in the farmland of this case meet all the natural burial requirements and judged whether to build a family graveyard without permission.

Nevertheless, the court below held that there is no evidence to acknowledge that the defendant installed a cemetery, which erred in the misapprehension of the limit of the principle of free evaluation of evidence, or in the misunderstanding of legal principles as to the establishment of a cemetery and its natural burial, thereby failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. The prosecutor's appeal, including this purport

2. As to the violation of the Farmland Act

A. The court below reversed the first instance judgment and acquitted the Defendant, on the grounds that it is difficult to conclude that the Defendant changed the form and quality of the farmland of this case or installed a tangible object that may hinder the use of farmland as farmland, on the grounds that it is difficult to conclude that the Defendant changed the form and quality of the farmland of this case or installed a tangible object that may hinder the use of farmland on the ground that the Defendant, as seen earlier, installed a unauthorized family cemetery and diverted farmland without obtaining permission from the competent authority.

B. However, it is difficult to accept the above determination by the lower court.

In light of the fact that Article 2 subparagraph 7 of the former Farmland Act (amended by Act No. 9721 of May 27, 2009) provides that the diversion of farmland means all activities using farmland for purposes other than the cultivation of crops or the cultivation of perennial plants, such as changing the form and quality of farmland, or installing tangible objects that may obstruct the use of farmland, etc., and that the temporary use of farmland for other purposes is limited to cases where permission for temporary use is obtained from the competent authorities, such as the Mayor, etc. on the condition that farmland is restored to farmland after using it for a specific period for the use prescribed in Article 36 of the Farmland Act and restored to farmland, the temporary use of farmland for other purposes shall be deemed to constitute the diversion of farmland without permission, unless the requirements for temporary use permission are met.

However, as seen earlier on June 24, 2008, if the Defendant buried five remains in the farmland of this case and installed a cover of the substitute stone on the earth’s surface after planting the turf around the surrounding 29th day of the same month (for the purpose of landscaping), it is sufficient to view the above act as a case where farmland was used for purposes other than cultivating crops or growing perennial plants, and it is not determined otherwise because such use was temporarily used, or that the Defendant started the cultivation after covering the soil at the same time before the elapse of the long time.

Nevertheless, the lower court found the Defendant not guilty of this part of the facts charged solely on the grounds that the Defendant covered the remains and cultivated them by cutting off the string, it erred by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles on the establishment of farmland diversion, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s appeal, including this purport, has merit.

3. Conclusion

Therefore, the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)