분묘기지권 시효취득의 관습 존재 유무에 관한 고찰-분묘 관련 판례 및 제도의 연혁적 고찰을 중심으로-

Abstract

The government restrictively strengtened the control over tombs and graveyards by legislation of the Funeral Act(enforcement date : 2001. 1.13.) including limitation of burial ground and duration for 60 years in order to achieve effective use of mountain area. Especially, the Funeral Act revised toward forbidding claims of rights for grave preservation about the tombs that have been constructed upon another’s land without his permission. As soon as the Funeral Act was enforced, the Supreme Court declared, the legal norms that grave possessors who have occupied the graveyard over 20 years peacefully and publicly acquire graveyard rights over the burial ground don’t exist through the supreme court decision. Here, the graveyard right is a kind of customary law which is similar to the surface right. On sentencing this case, the academic world is making diverse studies about following issues : whether the custom of graveyard right is lasting yet, what is thereason and effect of the grave right, whether the custom for acquisition of grave rights by prescription existed or not. Some people argue that there had not been any cognition or custom for acquisition over graveyard right by prescription did not exist in our traditional communities. In this part, they provide this fact as a legal basis that there is no record on the survey reports including 「The survey report of custom」and 「The Question and Answers」under the Japanese Government-General of Korea about the custom which allows acquisition by prescription. However, it seems that the acceptance of the survey result that was performed by Japanese colonial institutions and Japanese interviewers in accordance with their legal system and favors requires a deliberate approach. Considering permission of differential burial area by steps, grave right by practical occupation, time limit of litigation surrounding graveyards, it sounds reasonable that the custom for acquisition graveyard right by prescription substantially existed in Chosun Dynasty society.