“관습상의 분묘기지권”의 전제인 관습 부존재에 대한 고찰(Ⅱ) - 현재 관습의 소멸 여부

It has been 89 years since the Joseon appellate court sentenced a customary rights for graves for the first time in 1927 to the Supreme court had made public hearing about 2013다17292(removing grave etc.) case in 2016. During the period, A written law of such as Korean Constitution, Ex-Burial Law, Ex-Funeral Law, and Current Funeral Law have been legislated and also changed social recognition. Especially after the same law has been enforced since 2001.01.13, Ex-Funeral Law article 23 section 3 has been expressly stipulated in the text that “a relative of grave who applies to the section 1 each 1 cannot assert the right of preserving the land use against a landowner, grave installer and relative” for not admitting the a customary rights for graves. Not only the perspective of constitute and the previous legal point of view, but also the case(Supreme court 1997.8.21) from The Supreme Courts about acquisitive prescription of possessive right has demanded the objective existence of title of obtaining possession. Furthermore, based on social change, rural population has decreased rapidly to 5.8% of whole number of population, forest land where is using a lot for grave is easily accessible and the economic value of forest land has been increased by industry development, the preference of cremation has been increased than burial. A customary rights for grave is movable and replaceable than a customary right for superficies about building, and awareness of people for the funeral custom has been changed a lot from high level of education and various religious view. So the recognition of premise of admitting a customary rights for grave under specific legal conditions after installed graves on the ground of other person has not existed anymore. Therefore, the case which has been admitting a customary right for graves must be abrogated.