2018Da283797 Removal of graves

A

Law Governing Law Governing Law Firm

Attorney Jeon Soo-young, Attorneys Park Jong-young, Park Jong-hee, and Choi Jae-han

B

Attorney Kim Byung-hee, Counsel for the plaintiff-appellant

Daegu District Court Decision 2018Na30323 Decided October 10, 2018

February 28, 2019

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. To file a claim for the removal of a grave based on ownership of forest land, a person who has the right to manage and dispose of the grave shall be subject to the claim (see, e.g., Supreme Court Decisions 67Da2073, Dec. 26, 1967; 95Da51182, Sept. 5, 197). This is to prevent the removal of the grave pursuant to a judgment against a third party who has no right to manage and dispose of the grave. Accordingly, the court must hear who has the right to manage and dispose of the grave along with the existence and details of the grave.

2. For the following reasons, the lower court dismissed the Plaintiff’s claim seeking to transfer the part of the grave (hereinafter referred to as the “instant grave”) in the part of the Do-dong-dong-si D Forest Land (hereinafter referred to as “instant land”) based on the ownership of the land, which is located within the boundary of the grave (hereinafter referred to as “instant grave”).

According to the evidence duly admitted, evidence, such as evidence No. 8, etc., the Defendant was buried in K in the instant grave, but the Defendant filed a report on the reburial on November 2, 201, and completed the excavation of the instant grave at that time, including the reburial of the instant grave and the burial of remains. (No longer there exists no grave on the part of the instant grave, and there is no evidence to prove that the Defendant occupied the part of the instant grave.)

3. However, the lower court’s determination is difficult to accept in light of the aforementioned legal doctrine and the record. According to the evidence No. 8, it can be known that the Defendant’s Chon-gun’s graves were installed in N in Ansan-si, not in the part of the instant land. In other words, the instant grave is not K, but rather in the instant grave, and the identity of the management and disposition authority is not confirmed.

Therefore, the lower court should examine who is the person who has the right to manage and dispose of the grave of this case by clarifying the details of the installation and the circumstances of the installation of the grave of this case.

Nevertheless, without any further deliberation, the lower court rejected the Plaintiff’s claim on the premise of erroneous facts that the Defendant did not occupy the portion of the land at present, as the Defendant’s graves were installed on the part of the (B) land, and the Defendant did not occupy the said portion of the land.

In so determining, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules and by failing to exhaust all necessary deliberations as to the details of installation of graves and the attribution of the right to manage and dispose of graves. The Plaintiff’s ground of appeal pointing this out is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice shall mobilization by the presiding Justice

Justices Cho Jong-hee

Justices Kim Jae-sik in charge

Justices Min Min-young