분묘기지권자의 지료지급의무와 그 지급 시기 - 대법원 2021. 4. 29. 선고 2017다228007 전원합의체 판결을 중심으로 -

Abstract

The right to a graveyard recognized as a real right under common law, similar to the superficies, by the judgment of the High Court of Joseon(Korea) during the Japanese colonial period, and is still recognized due to the peculiarity of the tomb. However, as the economy develops, disputes arise between graveyard owners and landowners due to the strengthening of landowners' awareness of rights, changes in funeral culture, and changes in funeral laws. In particular, there is no limitation on the duration of the graveyard right, unless there are special circumstances, so the ownership of the landowner is excessively limited. Therefore, landowners should be able to claim for land use. The results of the review in the text are as follows. First, since the consent-type graveyard right is similar to the contractual superficies, whether or not to pay the fee is determined according to the agreement between the parties, and if there is no agreement, it is free. Second, the legal Superficies-type graveyard right and the acquisitive prescription-type graveyard right are paid. The fee is determined by analogy application of Article 366 of the Civil Act on legal Superficies, and the graveyard right holder bears the obligation to pay the fee from the time the graveyard right is established. In particular, in the case of an acquisitive prescription-type graveyard right, the obligation to pay the fee arises when the graveyard right is established, that is, from the time the grave is installed. However, according to the majority opinion of the Supreme Court's decision on April 29, 2021, the person who has acquired the graveyard right by prescription must pay the fee from the time it receives a request for payment from the land owner. Regardless of the type of graveyard right, if the obligation to pay the land use fee is recognized, the graveyard right holder shall pay the fee from the time when the graveyard right is established, unless there is a special circumstance such as a contract. Therefore, the majority opinion of the Supreme Court's unanimous decision is not logically valid. However, the above-mentioned decision is meaningful in that it is trying to harmonize the interests of the land owner and the graveyard right holder by recognizing the land use fee to protect the property rights of the land owner, unlike the previous Supreme Court decision or the Constitutional Court decision, which emphasized only the public interest of protecting traditional culture and legal stability.