분묘기지권에 관한 비판적 고찰- 대법원 2017. 1. 19. 선고 2013다17292 전원합의체 판결 -

Abstract

This paper examines the case in which the validity of custom recognizing acquisitive prescription of the site right of graveyards was discussed. (1) Considering that the Act on Funeral contains provision to rule out the site right of graveyards, it is not desirable to allow legal relations to which the Act on Funeral does not apply after the enforcement of this Act. Supplementary provision should be interpreted in the light of content and intent of the Act. Therefore, as to those graves for which the prescriptive period of 20 years have not elapsed as of January 13, 2001 when the Act on Funeral was enforced, acquisitive prescription of the site right of graveyards should be denied. (2) According to civil law, acquisitive prescription of the site right of graveyards can be allowed when the possessor of graveyards have thought that he have permission of the land owner and he have possessed graveyards as the holder of the site right of graveyards. If the possessor of graveyards have installed the grave on the land of another person and he have known that there was no permission of the land owner, acquisitive prescription of the site right of graveyards should be denied. The validity of custom recognizing acquisitive prescription of the site right of graveyards can not be maintained. Considering that the site right of graveyards is a limited real right, consent of the land owner is an essential element to acquire the site right of graveyards. The fact that the site right of graveyards can be acquired without registration does not influence this element. The supplementary opinion of majority opinion of the Supreme Court pointed out that denial of custom recognizing acquisitive prescription of the site right of graveyards can cause social turmoil. These concerns can be reduced by means of finding of fact, interpretation of intention, the distribution of the burden of proof.