시효취득에 의한 분묘기지권- 대법원 2017. 1. 19. 선고 2013다17292 전원합의체 판결 비판적 고찰 -

The site right of graveyards is the real right based on the customary right to use the land owned by the other person to the necessary extent for the purpose of protecting the tomb and to block interruption by the land owner and the third person. So far, the supreme court made a judgement that the site right of graveyards is acquired in the case that a grave is made on the land owned by another owner with the consent of the land owner or in case that a grave is made on the land owned by oneself and the land is transferred to other person without any agreement that the grave will be moved or unearthed. The supreme court decided that the site right of graveyards based on the customary right, which is similar to surface rights, is acquired by prescription even in case that a grave is set up on the land owned by another owner without consent if the grave has been preserved and occupied and given ancestral rites for 20 years in tranquility and publicly and that such site right of graveyards based on the customary right doesn't require registration. However, the this Supreme Court Decision 2013 DA 17292 on January 19, 2017 judged that the site right of graveyards should be retained based on the previous decisions and on legal precedents such as the legal nature of the burial law, the specificity of the burial grounds and realities of the site right of graveyards for the reason that it could not be concluded that the grounds for the existence of the site right of graveyard rights had been lost. However, now, since many years have passed from the time of recognition of the site right of graveyards based on the customary right, the citizens' consciousness about the cultivation of graves and cemetery has changed a lot and people do not think of installing a grave on the land owned by other person for most of them have consciousness of relevant laws. Therefore, it is regrettable that this ruling failed to reflect the change in the whole legal system onto the judgement, which has kept the site right of graves based on customary law only for the reason that 20 years have passed since a grave is installed on the land of another person without permission. As the meaning of the this Supreme Court judgment, it is not desirable to deny the site right of graveyards retroactively for those graveyards that have already established the foundation of the site right of graveyards before the enactment of the burial law, in terms of public confidence and legal stability. However, it is desirable not to acknowledge the site right of graveyards for a grave that has not completed the 20-year prescription period after the establishment of the grave before enforcement of the burial law on January 13, 2001. Otherwise, it does not fit to the principle of equity and has no persuasive power to grant the site right of graveyards to a grave which was installed on January 12, 2001 but the landowner raised the lawsuit for dismantlement of the grave late and not to grant the site right of graveyards to a grave which was installed on January 13, 2001 no matter how long it has passed since its installment. In addition, it is not a desirable direction to acknowledge the existence period of tomb permanently for a grave for which the site right of graveyards is already acquired when considering changes in people's perception regarding the legislative purpose of the burial law and cemetery. Therefore, in the future, it is expected that decisions will turn to the direction which limit the duration of tomb to a certain period through social consensus. Fortunately, in this judgment, the five Supreme Court judges suggested a minority opinion toward customs regarding the site right of graveyards through acquisition of prescription by denying acquisition by prescription for a grave which failed to meet the requirements of prescription before enforcement of the burial law at least at the time of enforcement of the burial law since the confidence in the legally binding power of the customary practice of the previous customs is lost. Is it too much to expect that this ruling will be changed in near future?