관습상의 분묘기지권 인정 대법원 판례 검토 - 대법원 2013다17292 전원합의체 판결

Abstract

After the Supreme Court held a public hearing on the Supreme Court of case 2013da17292 about the Customary Rights for Graves on September 22, 2016, the Supreme Court uphold the precedent judgment about the Customary Rights for Graves in the object judgment sentenced on January 19, 2017. But, we can’t believe that there was such a custom of the customary rights for graves in 1927 and in 2017. The reason is there were a number of lawsuits about graves, and there were not a system of acquisitive prescription in the Joseon dynasty. As of 2017, the educational level of the citizen increased, the increase of economic value such as mountain area, the substitution and easy relocation of cemetery, the modernization of funeral facilities such as cremation and tree funeral, the rapid increase of the cremation population, the change of citizens’ perceptions of cemetery caused by the decline of Confucianism culture and the expansion of Christianity and Buddhist culture, low cost of cremation etc also bring on a change in perception of burial customs. In addition, the Act on Funeral enacted on January 13, 2001 shows legitimate decision of non permission about the customary rights for graves no more. If so, though it is reasonable that the object judgment should not recognize the customary rights for graves, to maintain the judgment of guarantee of the existence term of graves and free rental fee is not fair.