분묘기지권의 재해석

Abstract

When interpreting paragraph 3, Article 27 of the Funeral Law, the Right of Graveyards is not affected before and after the enforcement despite of the enforcement of the Funeral Law. However, it is interpreted that all 3 types of acquiring the Right of Graveyards are accepted after the enforcement of the Funeral Law, but the one who acquired the Right of Graveyards in those ways cannot resist to the owner of the land and so on. In other words, this policy only ruled whether one can resist to the owner of the land; it did not directly mention the judicial right. The Right of Graveyards is a real right to purpose the use and the profit so that holder of the right can claim anyone the right and nobody can arrogate it; however, when the Right of Graveyards is installed after the enforcement of this law, if he did not receive the consent of the landowner, the one who has the Right of Graveyards cannot resist to the owner of the land. Thus, it is interpreted that an acquisitive prescription of the Right of Graveyards after legislation of the Funeral Law is accepted, the grave owner acquires the Right of Graveyards when transferring land without the settlement related to the grave, and the Right of Graveyards can be acquired when installing the grave by use approval of the land. Only by this interpretation, the grave owner can ask for responsibility of tort liability when a third person, not land owner, invade the grave. Also since only the grave owner can enjoy the possession of the grave, it can be interpreted that even the grave that is installed illegally without a right title does not accord with the land. It is because that the grave is interpreted to the component of the land, so it cannot be considered as the possession of land owner. Naturally, it can be thought that only corpse or remains is possessed by the grave owner and the grave itself is accorded with the land, but since the grave is meaningful when the corpse, remains, burial mound, and graveyards are all gathered together, this possibility of interpretation can be blocked. On Article 19, paragraph 1 of the Funeral Law, when considering installed the installation time period of the graves and the enforcement date of the law, the installation time period of the graves that is installed before the enforcement date of the law means the enforcement date of the law, and it can be considerable when interpreting the installation time period to 15 years from the enforcement date of the Funeral Law. When the installation time period of 15 years elapses, despite of the Funeral Law, Article 19, paragraph 2, there is no permission of land owner; thus, by the Funeral Law, Article 27, paragraph 3, the grave owner cannot claim the Right of Graveyards to the land owner. The surface rights is valid regardless of the existence of the things on the ground, and expires when the installation time period terminates; however, the Right of Graveyards demand about requirement for establishment and requirement for continuity to exist the grave. Thus, the Right of Graveyards does not lapse only when the installation time period terminates; it should be printed that it lapses when actually tearing down the things installed in the grave. (refer to the Funeral Law, Article 19, paragraph 2). When interpreting the Funeral Law, Article 19, paragraph 2, the law only provides the rule that the installation time period of the grave should be extended when related party to the grave requests to do so; however, it overlooks that the ownership of the land owner can be invaded. According to the fact that it is a mandatory provision, it is an important legislative defect. Therefore, it should be restrictively interpreted that when the period of the Funeral Law, Article 19, paragraph 1 expires, one who occupies the land by the Right of Graveyards cannot affect the land owner despite of the permission of extension, unless the land owner agrees with it. In this case there is no permission of the land owner, so it should be considered that the grave owner cannot claim the right to the land owner by the Funeral Law, Article 19, paragraph 1.