분묘기지권의 재검토 - 대법원 2017.1.19. 선고 2013다17292 전원합의체 판결 -

Abstract

The right to a graveyard is a customary real right allowing for the use of the land owned by another person and excluding the interference by the landowner or a third party to the extent necessary for the purpose of safeguarding the graveyard and worshipping ancestors. The Supreme Court: the right to a graveyard on another’s land, which a person prescriptively acquires by installing a grave on another’s land and peaceably and openly holding it in possession for twenty years, is a customary real right similar to surface right, and has been recognized as a legal norm and a long-standing custom and practice. This legal norm should be deemed to have been, and continue to be, applicable to those graves installed before January 13, 2001, when the Funeral Act went into effect(see, e.g., Supreme Court Decisions 2013Da17292 Decided January 19, 2017). But it is our custom to recognize the prescriptive acquisition of the right to a graveyard on another’s land for those graves installed without the landowner’s permission, such a custom came to be no longer justified or rationalized due to its inconsistency with the contemporary legal order, or in any event no later than January 13, 2001, when the Funeral Act went into effect. Furthermore, the Funeral Act allows the landowner to personally rebury any grave installed without his/her permission regardless of whether the grave was installed before or after the enforcement of the said Act. As to those graves installed after the Act’s enforcement, the Funeral Act completely excludes the claim by the related party of the grave against the landowner for any rights, such as for the use of land. As such, the past custom—recognizing prescriptive acquisition of a de facto permanent and gratuitous right to graveyard merely based on the peaceable and open possession of a grave for twenty years, even without the landowner’s permission—has lost its justification and rationality due to its inconsistency with the contemporary legal order, including the constitutional respect for private property, at least since January 13, 2001, when the Funeral Act went into effect. Moreover, with the erosion of the community’s legal assurance in the custom’s legally binding force, the custom has lost its normative validity. Therefore, as to those graves for which the prescriptive period of twenty years have not elapsed as of January 13, 2001, one may not claim for the prescriptive acquisition of the right to a graveyard on grounds of the past custom, which is no longer normatively valid.