Whether or not the cost required by a person who operates a private cemetery in another person's forest is a necessary cost or a beneficial cost because he/she provides necessary facilities.

All of the expenses the Defendant spent by using the forest land of this case as a private cemetery and collecting cemetery usage fees and grave management expenses from the establisher of the grave in order to collect cemetery usage fees and grave management expenses, etc. from the establisher of the grave, and thus the facility cost is required for the Defendant’s business using the forest land of this case as a private cemetery. However, it is not necessary for the owner of the forest of this case to preserve it, but it cannot be said that it is the beneficial expenses increased in the value of the forest of this case. Thus, the said facility cost claim or lien cannot be exercised.

Articles 626 and 320 of the Civil Act

Supreme Court Decision 4291Da1923 delivered on December 17, 1968 (Supreme Court Decision 691Da1672 delivered on August 27, 1959, Supreme Court Decision 68Da1923 delivered on December 17, 1968 (Supreme Court Decision 8025 delivered on August 27, 195, Supreme Court Decision 626(3)481 delivered on December 17, 1968)

Plaintiff

Defendant Incorporated Foundation

Seoul Central District Court (74Gahap3059) in the first instance trial

Supreme Court Decision 76Da2079 Decided October 26, 1976

The defendant's appeal is dismissed.

All costs of the lawsuit shall be borne by the defendant.

The defendant shall deliver to the plaintiff the plaintiff 83 forest land, 21 Yanyang-gun 4 forest land, Yanyang-gun 83 forest land, Yanyang-gun 4 forest land.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

In light of the above evidence No. 1 (No. 1), No. 4 (the same as evidence No. 3), No. 11 (the same as the above evidence No. 1), No. 12 (the indictment), No. 13-2 (a copy of each witness’s register), No. 5 (a sales contract), and No. 1, No. 6-2 (a copy of each witness’s protocol prior to remand), and the same fact that the ownership transfer registration of Non-party 1 was concluded by Non-party 4 with respect to non-party 1’s non-party 4’s transfer registration for the same purpose as that of Non-party 1’s real estate transfer registration for the purpose of Non-party 1’s execution of the above evidence No. 5 (the above part which is not trusted by the court below), and the fact that the non-party 2 had no ownership transfer registration for the purpose of this case’s real estate transfer registration for non-party 1’s real estate transfer registration for non-party 4, the original purpose of this case No. 315 forest land transfer.

The defendant deposited 1,950,00 won as of June 25, 1973 and 773,000 won as of October 12 of the same year. The registration of the non-party 4 as to the forest of this case should be cancelled due to the extinguishment of the above secured obligation. Thus, the plaintiff who completed the registration of ownership transfer as to the forest of this case can not acquire the ownership of the forest of this case due to the termination of the above secured obligation. However, although the plaintiff had already purchased the forest of this case from the non-party 4 as the secured right holder on January 10, 1973, the transfer of the security obligation of the defendant principal, the transfer of the security obligation of the defendant principal, the purchase of forest of this case from the non-party 4 as of January 10, 1973. Thus, the plaintiff has already acquired the forest of this case effectively.

The defendant asserts that the sale of the forest land of this case between the plaintiff and the non-party 4 is the so-called trade by the declaration of a conspiracy, and thus is null and void. However, the defendant's above assertion is not acceptable on the grounds that the above witness's testimony and part of the result of the examination of the criminal records of the court below (each statement of non-party 2, 5, and 6, each statement of non-party 5, and non-party 5, and each statement of non-party 7) are written in Gap evidence 4, 5, Gap evidence 6-1, 11, and 12, and the result of the examination of the criminal records of the court below (each protocol of non-party 1, 4, and 8).

In addition, Nonparty 4 committed a breach of trust by selling the forest land of this case, the market price of which is at least 22,00,000 won, and the Plaintiff actively participated in the act of breach of trust, which is alleged to be null and void as an anti-social act stipulated in Article 103 of the Civil Act. However, since there is no evidence to recognize that the Plaintiff actively recommended this Nonparty and sold it at a low price like the head of the Defendant, the Defendant’s assertion that the sale by the said Nonparty cannot be deemed as a breach of trust is without merit.

Finally, the defendant, a juristic person established for the purpose of establishing and operating private graveyards 5 on July 25, 1970, with the permission of the Governor of the Gyeonggi-do on November 16, 1970 for the establishment and management of the private cemetery, developed the forest land from around that time to May of the same year as the park cemetery, and included the construction cost of 36,950,00 won for the road construction work, stone construction work, landscaping work, etc. in addition to the construction site management office and warehouse in the forest land within 1972 from around March 16, 1972, the defendant collected 100 square meters away from the 6th anniversary of the construction cost of the private park, and claimed that the owner of the private park shall exercise the right of retention for the forest land within 0-meter radius for the purpose of maintaining and improving the forests and fields of this case. Accordingly, according to the results of the appraisal of the non-party 9, the defendant shall establish the private park within 20-meter radius of the forest and fields.

In addition, the facility cost cannot be said to be the beneficial cost that increased the value of the forest of this case against the plaintiff who is not permitted to install a private cemetery. Therefore, the defendant cannot claim the plaintiff to reimburse the facility cost, and therefore the defendant cannot exercise the right of retention. Accordingly, the defendant's claim on this point cannot be accepted as it is without merit.

Therefore, in this case where the defendant does not prove that he has the right to possess the forest of this case against the defendant, the defendant is obligated to deliver the forest of this case to the plaintiff. Accordingly, the decision of the court below with the same conclusion is just and the defendant's appeal is without merit, and it is dismissed, and it is so decided as per Disposition by applying Articles 96 and 89 of the Non-Contentious Case Litigation Act to the burden of litigation costs.

Judges Kim Cal-sik (Presiding Judge)