분묘기지권의 재산권 침해 및 위헌 성 여부에 관한 연구 - 헌법재판소 2020. 10. 29. 선고 2017헌바 208 결정에 대한 평석을 중심으로 -

The Constitutional Court did not recognize the unconstitutionality of the acquisition prescription-type tomb base right on the grounds that “if the tomb is installed without the consent of the owner on the land owned by another person for 20 years, the tomb base right, which is a real right under the custom of superficies, may be acquired by prescription and countered to a third party without registration.” and “In the absence of an agreement or special circumstances between the parties regarding the duration of the tomb base right, the tomb base right shall survive as long as the right holder continues to protect and serve the tomb.” (Constitutional Court sentenced on October 29, 2020) The Constitutional Court’s decision is difficult to agree on for the following reasons, and it is necessary to review whether it is unconstitutional due to infringement of property rights. First, at least around the time the revised Business Act came into force on January 13, 2001, the acquisition prescription-type tomb base right went against the entire legal order, including the Constitution and the purpose of the Business Act (Article 1), which respects the guarantee of private property rights. Second, if a tomb is located in the middle of a forest, it is contrary to the principle of minimization of damage in that the so-called “outside” function affects the use or economic value of the entire land. Third, if the tomb installed without permission in the middle of the forest persists permanently, it is a fatal infringement of property rights to the owner of the affected land, and it is not clear why ownership should be pushed down the lower order than the tomb base right, so it is considered to violate the balance of legal interests.