분묘기지권 시효취득 관습 소멸여부에 대한 재검토: 대법원 2017. 1. 19. 선고 2013다17292 전원합의체 판결

Abstract

The customary law for acknowledging the graveyard right by prescription custom has been expired around the enforcement date of the Funeral Law(Act 6158) that stipulates a person who has installed tombs on another’s land without at least the consent of the land owner cannot claim the right to use land or other rights for the preservation of tombs. By the time of the enforcement date on January 13, 2001, the legal effect of graveyard right was judged to have expired because the legal conviction of the members of the society about the legal norm seems to have been extinguished and as it did not conform to the entire legal order such as the Constitution, Civil Law, and Funeral Law. By it’s nature, if customary law is approved for extinction by judgment or legislation, it will take effect retroactively to the time when the legal confidence disappeared. However, in accordance with Article 2 of the Supplementary Provisions of the Funeral Laws(Act 6158, etc.) to protect legal stability and to prevent confusion in life, the customary law for graveyard right should be applied to the tombs which have been established before the effective date of the Funeral Law(Act 6158) on January 13, 2001 even if they didn’t not have been acquired prescription at that time. In conclusion, the customary law that recognizes graveyard right by prescription is applied to the tombs which have been constructed before the enforcement date of Funeral Law (Act 6158). The reason is not because the customary law is lasted, but because the Funeral law prescribes the special supplementary provision.