김상용 교수 정년 기념 분묘기지권의 인정근거와 효력에 관한 약간의 고찰 = A Study on the Legal Basis and Force of the Site Right of Graveyards

다국어 초록 (Multilingual Abstract)

The site right of graveyards is to allow a person who made a tomb in another’s land to use the tomb site, which can be defined as a real right similar to superficies, a kind of customary laws. In regard to the site right of graveyards, judicial precedents have granted it unquestioningly, but in recent times more have raised strong opposition against the customary law, citing ‘Act of the Funeral(funeral act)’ and socioeconomic changes in Korean society as the ground. Ordinarily, the site right of graveyards is granted in three cases - where a tomb has been made with the permission of the land owner (permissioned right), where the right has fallen under acquisitive prescription (right with acquisitive prescription), and where a tomb and a land owned by the same person have been separated from each other and belonged to different persons (transferred right). The site right of graveyards has usually been acknowledged with customary laws. The permissioned right is a good example. On the other hand, it is unreasonable to regard the right with acquisitive prescription and the transferred right as customary, and moreover it is reasonable to regard the custom as obsolete. In the case of the permissioned right, there is the need to compare those days and our times. In our times, thus, the custom is counted as passed away. In addition, the right with acquisitive prescription is problematic because it may wrongly infringe upon others’ land ownership and, by extension, may protect malicious and illegal occupants. Likewise, the transferred right is problematic given the fact that there has been increasing criticism of statutory superficies and that land that purchasers have had problems. Taken altogether, it may be rational to conclude that the site right of graveyards has lapsed subsequent to the enforcement of the funeral act. Meanwhile, in terms of public confidence and legal safety, it is unadvisable to retrospectively apply the newly-enacted Funeral Act to tombs made under the former requirements, notwithstanding the lapse of the right. It may be advisable to grant the site right of graveyards in the case of tombs made under requirements, provided that the term of duration is determined with ground rent. Additionally, a review needs to be conducted even on rightful cases, inclusive of right holders. With this proposal, the site right of graveyards is expected to be gradually rearranged as the restricted real right to lapse gradually.