[1] The person to whom the right to graveyard belongs

[2] The duration of the right to grave base and whether the right to grave base continues to exist when a grave is temporarily destroyed (affirmative)

[1] If, in reality or in customs, a member of the family who is the heir of the family has the right to the protection and the religious service of the grave, the right to the protection and the right to the graveyard shall be exclusively attached to the member of the family and shall not be involved in another member of the family or the clan, not to the member of the family. However, if a clan consisting of the descendants of the joint ancestor has managed the protection of the tomb, the right to the protection and the right to the graveyard of the grave shall belong to the clan

[2] If 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 such special circumstances as the parties have agreed on the duration of the right to grave base. However, in the absence of such circumstances, it is reasonable to interpret that the right holder continues to hold the grave and serve the grave and continue to exist during the duration of the grave. In addition, even if the grave is destroyed, if it is only a temporary loss because it is possible to restore the grave due to the existence of the remains to its original state, it is reasonable to interpret that the right to grave

[1] Articles 185 and 279 of the Civil Act / [2] Articles 185 and 279 of the Civil Act

[1] Supreme Court Decision 91Da30491 delivered on March 13, 1992 (Gong1992, 1297) / [2] Supreme Court Decision 81Da1220 delivered on January 26, 1982 (Gong1982, 301) Supreme Court Decision 94Da28970 delivered on August 26, 1994 (Gong1994Ha, 2528)

Plaintiff 1 and five clans (Law Firm Future, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeong Sung-sung et al., Counsel for defendant-appellant)

Seoul High Court Decision 2004Na80900 delivered on July 8, 2005

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If, in reality or in customs, the descendants, who are the descendants of the family head of the family, have the right to manage the graves or to maintain their religious rites, their right shall be exclusively owned by the descendants of the family head of the family, and shall not be involved in other descendants or the clans, not by the descendants of the family head of the family. However, if the clans composed of the descendants of the joint ancestor, has been managed by the descendants of the joint ancestor, the right to manage the graves or the right to grave base shall be reverted to the clans (Supreme Court Decision 91Da30491 delivered on March 13, 192).

In light of the above legal principles and records, the court below recognized facts as stated in its decision after compiling the evidence of its employment, and judged that the ten-year right to grave base of the instant grave belongs to the Plaintiff’s clan is just, and there is no error of law by misunderstanding the legal principles on the reversion of the right to grave base, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

If 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, except in extenuating circumstances. However, it is reasonable to interpret that the right holder continues to maintain the grave as long as the grave continues to exist, and in the absence of such circumstances, the said grave continues to exist. In addition, even if the grave is destroyed, if it is possible to restore the grave to its original state on account of the existence of the remains and it is only temporary destruction, the right to grave base remains

According to the reasoning of the judgment of the court below, the graves of this case were installed with the consent of the plaintiff clan which was the owner of the forest of this case, and thereafter, the provisional registration of the preservation of the right to claim ownership transfer under the purchase and sale reservation was made on March 29, 1977 with respect to the forest of this case on the non-party 1, who was the mother of the defendant, on April 29, 197, and the ownership transfer registration was made on the provisional registration on April 29, 198, and the non-party 1 died, on September 2, 1995, on the ground that the ownership transfer registration was made on September 2, 1995, on the inheritance by agreement division was completed, and the defendant sold the graves of this case on August 30, 201, and buried them, and then stored the remains in the charnel located on August 30, 200, and if so, the plaintiffs acquired the right to grave base of this case, and it still remains possible to restore the said right to the grave.

In the same purport, the court below's decision that each of the plaintiffs has the right to grave base is just and it is not erroneous in the misapprehension of legal principles as to the right to grave base, as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

Examining the evidence admitted by the court below in light of the records, the court below's determination that the plaintiff's 10 days of the representative of the plaintiff clan 2 and one grave of the plaintiff 4 had been installed in the forest of this case is just and acceptable, and there is no violation of the rules of evidence against the rules of evidence, and the plaintiff's ground of appeal on this part is merely an error of selecting evidence and finding facts which belong to the exclusive jurisdiction of the fact-finding court, and it is difficult to view it as a legitimate ground

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)