“관습상의 분묘기지권”의 전제인 관습 부존재에 대한 고찰(Ⅲ) - 판례 변경 필요성

When the Joseon appellate court sentenced a judgement accepted the Customary Rights for Graves in 1927, a custom such as the prerequisite of the Customary Rights for Graves was proved not to exist by the 「The Book of the question and answer about the common law」 Jungchuwon of the Japanese Government General of Joseon and the 「The Report of investigation of the custom」 written by Japanese Government General of Korea. Because Japanese civil law was enforced in 1912 and the real estate registration system had just implemented in 1918, Korean did not have a notion of acquisitive prescription over real right such as legal superficies in 1927. Even if those custom had existed in 1927, it extinguished now in 2016 when the public hearing concerning [this case](Supreme Court case 2013da17292) is held. The reason is that public attitudes regarding property rights, funeral culture like cremation, idea for propitious site for a grave and theory of divination based on topography decrease rapidly. And Confucianism population decreases, Christianity and Buddhism population increase and the level of education of citizen improved high. Above all, when the Act on Funeral was enforced in 13 January, 2001, because the act does not permit the Customary Rights for Graves and preclude a claim of right over graves of installer of graves and person interested, the Customary Rights for Graves is not no more. In conclusion, the precedent concerning the Customary Rights for Graves should be discarded. Even if the custom exists, the precedent should be changed as follows : the extent and the duration of the grave should correspond to the Act of Funeral and the rental should be paid.