분묘기지권, 특히 그 시효취득에 관한 재검토

The right to graveyard, recognized by legal precedents in Korea, is the right under customary law that allows the use of another person's land necessary to safeguarding and servicing the grave. The right reflects the unique gravesite practices in Korea. According to legal precedents in Korea, regardless of whether the landowner had granted consent or not at the time when the grave was installed, a person prescriptively acquires the right to graveyard if he or she peaceably and openly holds it in possession for twenty years. The Acts on Funeral Services (hereinafter “Funeral Services Act”) amended by Act No. 6158 on January 12, 2000, strictly regulates graves installed without the consent of the landowner. However, for those graves installed prior to January 13, 2001, when the Funeral Services Act came into force, courts still acknowledge the prescriptive acquisition of the right to graveyard. The purpose of this article is to review the relevant Japanese legal system which had influenced the cemetery system in Korea, look into the legislative history and meaning of the Funeral Services Act, and then revisit legal precedents regarding the right to graveyard, especially in terms of the prescriptive acquisition. The right to graveyard has played a transitional role of bridging the gap between the ancestral worship rooted in Korean tradition and the modern system of landownership. However, it makes little sense to maintain legal precedents on the right to graveyard in light of the provisions of the Constitution on the protection of property rights or the provisions of the Civil Act on land ownership. In consideration of the changes of Funeral Services Act and legal precedents regarding malicious occupation of a land without the landowner’s permission, it seems necessary to overturn legal precedents on the right to graveyard, in particular, the prescriptive acquisition thereof.