墳墓基地權에 관한 考察

Abstract

On account of the site right of graveyards, many realistic problems such as damage of nature, inefficiency of national land, and infringement of ownership have been happened and to regulate these a funeral law was enacted. So then, should the Site Right of Graveyards be abolished clearly? The site right of graveyards is not against to the principle of realty in Civil Law, and although funeral law excludes the existence of the site right of graveyards expressively, it is reasonable that the exclusion will be recognized only in the case, among the precedents which courts have acknowledged, of prescribing the site right of graveyard by establishing a graveyard in the land of others without permit of the owner. And the extend of effects to the Site Right of Graveyard needs to be limited to the necessity for the protection of graveyard and its service rather than controlled by the regulation of funeral law. But, in case of duration of the site right of graveyard, following the funeral law will be well-matched construction to the sight of the purport of the site right of graveyard, respect for private ownership, and the purpose of funeral law.