일제강점기 분묘기지권 관습 -조선고등법원(朝鮮高等法院) 민사 판결을 중심으로-

The Supreme Court’s judgments acknowledges a legal principle, that “In case you set up a grave on a land another person owns and if you occupy the base of the grave for 20 years peacefully and openly, you shall acquire prescription of the rights of graveyards, which is a customary real rights similar to the surface rights”. The acquisitive prescription for the rights of graveyards is being acknowledged as a sort of the customary law. In this study, I traced the origin of these customary law. For this purpose, I analyzed judgments on graves from civil cases of the Joseon High Court during the Japanese Colonial Era. Judgments on the rights of graveyards from the Joseon High Court changed, succeeded and developed in chronological order. And the grounds for all of the ① rights of graveyards for acceptance, ② rights of graveyards for transfer, and ③ rights of graveyards for acquisitive prescription, which were acknowledged in the Supreme Court’s judgments, could all be found in the Joseon High Court. The grounds for the rights of graveyards for transfer can be found in the Joseon High Court’s judgments in 1918, and the grounds for the rights of graveyards for acceptance and acquisitive prescription can be found in the Joseon High Court’s judgments in 1927. However, an important legal principle on the rights of graveyards for acquisitive prescription appeared in one of the judgments of Joseon High Court in 1921. In this judgement, the period of judgment(聽訟期限) for 20 years under Article 16 of 「the Great Code of Korean Criminal Law (形法大全)」 was actively quoted in the lawsuits on graves, saying, “in case a person builds a grave after infringing on a land without the acceptance of the land owner and if it exceeds the period of judgment(聽訟期限) for 20 years, the land owner shall lose the rights of action to seek exclusion of infringement against the grave’s builder, and accordingly loses the right to claim moving the grave on the grave’s builder.” Such a legal principle can be evaluated as the legal principle similar to invalidation of the rights of action on the legal procedure law, not a legal principle of extinctive prescription, and through this judgment, it can be evaluated that the legal principle of an acquisition prescription-type tomb base right has been formed. The custom on the rights of graveyards is a sort of the customary law the Joseon High Court ‘formed’ by quoting the rules of the period of judgment (聽訟期限). In order to deal with conflicts on graves difficult to apply Meiji(明治) 「Civil Code」, the Joseon High Court actively quoted the rules of the period of judgment(聽訟期限) forming legal principles, which provided an important ‘clue’ for tracing the origin and essence of the customary law.