분묘기지권의 존속기간에 관한 연구

Abstract

It is a precedent in legal system that the site right of graveyards should be protected over the absolute principle of ownership in terms of the ancestral worship. However, recent years witness that there is a great change in such legal precedent due to the change in funeral system, reform of grave system, change of civic attitude toward funeral ceremony. The question arise regarding the site right of graveyards because of the restriction to land use rights and blockage of effective use of land around the country. For this, the law on funeral (Article 19) which has been enforced since Jan., 2001 introduced the Periodic Burial Regulation. Article 27 of the same law specified that it is possible to open the grave which was established without a previous permission of land owner. Because of this kind of change, it is necessary to make a new approach to the principle of law on the site right of graveyards. However, the supplementary provision of the same law regulates that the Article 19 and Article 27 can not be applied to the previously established graveyard. This leads to various understanding on the terms of the site right of graveyards regarding the previously established grave. This means that several problems might pop up in the process of enforcing the law on funeral. The present paper review the terms of the site right of graveyards before and after the law on funeral was enforced focusing on theory and precedent. Looking over some problems which is related to the site right of graveyards, this paper propose some interpretative and legislative improvements on the terms of the site right of graveyards. The present paper argues that Article 27 and Article 2 of supplementary of provision on the law on funeral should revised so that the terms of the site right of graveyards could be unified whether the tomb was established before the law on funeral or not.