분묘기지권에 관한 소고

Abstract

A study on the site right of graveyards Kim, Jin In old traditional Korean society, they had to make their ancestors' tombs by Confucian ideas and the theories of divination based on topography, but every real estate which could make tombs belonged to only distinguished families and wealthy people those days. On the other side most common people couldn't have any lands to build tombs, so they couldn't help building their ancestor's tombs on the other's land. Considered with all things like this, Korean case law has recognized the real rights similar to the surface rights called "the right of grave and graveyard", even though they built their tombs without acceptance about their tombs from owners during 20 years freely. However it is wondered if Korean case law ought to recognize the right to make tomb without acceptance for 20 years even today.Especially considering with the law on funeral and the like first, under the item 1 and 3, the article 23, the same law, and the supplementary article 2, in the case of building the tomb without getting acceptance from the owner after coming into effect this rule, the right of grave and its graveyard can't be recognized any longer today,second, the grave keeper must preserve and serve the tomb for the existing period of the right of grave and its graveyard, but it doesn't mean he has the right of grave and its graveyard. It can just be seen as restricted for 60 years by the respect of private ownership and the law on funeral and the like.