Whether a Person Who Acquires a Grave-Site Right over Another's Land by Prescription Must Pay Land Rent from the Date the Landowner Demands It: The Boundaries of a Real Right under Customary Law

Starting Point of the Case and the Core Legal Question

Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 (claim for land rent) squarely addresses the following question: must a person who acquired a grave-site right by prescription, by possessing for 20 years the site of graves located on 400 m² of a parcel of forest land, pay land rent from the date of the demand?

The Supreme Court's core conclusions may be summarised as follows. The majority opinion set the standard that the content of a right recognised under customary law is to be determined in light of its legal nature and the purpose for which it is recognised, the balancing of interests, and harmony with the legal order as a whole. A grave-site right acquired by prescription is a right analogous to superficies that arises without any agreement and may, in effect, restrict ownership of the land permanently. Drawing together the historical background, reliance on the existing factual relationships, the special nature of the right, reason and the principle of good faith, and the purpose of Article 286 of the Civil Act, among other provisions, the Court recognised an obligation to pay land rent from the date of the demand. To the extent inconsistent with this, the Court overruled the decision rendered on June 26, 1992 in 92Da13936 and the decision rendered on February 28, 1995 in 94Da37912. The disposition reads: "All appeals are dismissed. The costs of appeal are borne by the defendant." The judgment's method of determination is one of comprehensive consideration (overruling of precedent).

This analysis follows the structure of the issues and the standards of determination appearing in the public judgment, and examines why the Supreme Court upheld the conclusion of the court below.

Sources for this section: Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 — official text of the decision, National Law Information Center

The Structure of the Issues Set by the Summary of Holdings and the Referenced Provisions

The framework of the summary of holdings as set out in the judgment is as follows: Whether, where a person installed a grave on another's land before January 13, 2001, the effective date of the former Act on Funeral Services, etc., and acquired a grave-site right by prescription by possessing the grave site peaceably and openly for 20 years, the holder of the grave-site right is obliged, once the landowner demands land rent, to pay land rent from the date of the demand (affirmative).

The referenced provisions to be read together in this case are Articles 1, 2, 245 (1), 248, 279, 286, 287, 305 (1) and 366 of the Civil Act; Article 10 of the Provisional Registration Security Act; Article 23 (3) of the former Act on Funeral Services, etc. (before being wholly amended by Act No. 8489 on May 25, 2007) (see current Article 27 (3)); and Article 2 of the Addenda (January 12, 2000) (now deleted). The first step is to separate which of the constituent elements, or the requirements for the creation of a right, laid down in the wording of the provisions fall within the domain of statutory interpretation and which fall within the domain of individual fact-finding.

In relation to prior precedent, this judgment occupies the position of an overruling of precedent. Read alongside the referenced precedents (Supreme Court Decision 92Da13936 rendered on June 26, 1992 (overruled); Supreme Court Decision 94Da37912 rendered on February 28, 1995 (Gong1995Sang, 1462) (overruled); Supreme Court Decision 2015Da206850 rendered on July 23, 2015 (Gong2015Ha, 1245); and Supreme Court en banc Decision 2013Da17292 rendered on January 19, 2017 (Gong2017Sang, 347)), it can be confirmed which legal principle in the earlier precedents the Court changed.

Sources for this section: Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 — official text of the decision, National Law Information Center

Analysis of the Supreme Court's Summary of Judgment and Key Holdings

The core of the summary of judgment stated by the Supreme Court is as follows. [Majority Opinion] Even where a person installed a grave on another's land before January 13, 2001, the effective date of the former Act on Funeral Services, etc. as wholly amended by Act No. 6158 on January 12, 2000 (hereinafter the "Funeral Services Act"), and thereafter acquired a grave-site right by prescription by possessing the grave site peaceably and openly for 20 years, the holder of the grave-site right should be regarded as obliged, once the landowner demands land rent for the grave site, to pay land rent from the date of the demand. In determining the content of a right recognised under customary law, a reasonable judgment must be made in consideration of the legal nature of the right and the purpose for which it is recognised, the balancing of interests between the parties, and harmony with the legal order as a whole. A grave-site right acquired by prescription is a right analogous to superficies that arises without an agreement between the parties, and ownership of the land may, as a result, be restricted in effect permanently. Accordingly, it accords with equity to regard a person who has acquired a grave-site right by prescription as bearing, within a certain scope, an obligation to pay the landowner consideration for the use of the land. Taking together the historical and social background against which the grave-site right acquired by prescription has been recognised under customary law, the parties' reliance on the existing factual relationships formed around graves and legal stability, the special nature of the grave-site right as a right under customary law, reason and the principle of good faith, and the purpose of the provision of the Civil Act on the right to demand an increase or decrease of land rent, which embodies these values with respect to continuing use-and-profit relationships over real estate, it is reasonable to hold that a person who has acquired a grave-site right by prescription must, once the landowner demands land rent for the grave site, pay land rent from the date of the demand. [Separate Opinion of Justice Lee Ki-taek, Justice Kim Jae-hyeong and Justice Lee Heung-gu] Where a grave-site right has been acquired by prescription, the holder of the grave-site right should be regarded as obliged to pay the landowner land rent for the period during which the holder has installed the grave and possessed the land; the obligation to pay land rent cannot be regarded as arising only from the time the landowner demands land rent. In light of the constitutional principle of the guarantee of property rights, the content and effect of ownership under the Civil Act, and ordinary transactional norms, where a possessor uses another's land for his or her own benefit, the relationship should be regarded as a use for consideration requiring payment for the use of the land, unless there are special circumstances such as an agreement between the parties that the use is gratuitous. If customary law lays down nothing regarding land rent for a grave-site right acquired by prescription, the legal norms governing similar cases should be applied by analogy. The grave-site right is a real right, analogous to superficies, entitling its holder to use another person's land, and it arises under customary law without an agreement between the parties. The form of land-use relationship most similar to this is statutory superficies. Where statutory superficies arises under Article 366 of the Civil Act and other provisions, the superficiary must pay land rent to the landowner "from the time the superficies arises". For the land-use relationship arising from the acquisition of a grave-site right by prescription, as in the case of statutory superficies, land rent must likewise be paid from the time the grave-site right arises. [Dissenting Opinion of Justice Ahn Chul-sang and Justice Lee Dong-won] Where a person installed a grave before January 13, 2001, the effective date of the Funeral Services Act, and acquired a grave-site right by prescription by possessing the grave site peaceably and openly for 20 years, the holder of the grave-site right should be regarded as having no obligation to pay land rent to the landowner, absent special circumstances. Since the grave-site right is a real right under customary law, the content of the customary law must be declared through investigation or confirmation of the custom, and it is not appropriate for the courts to determine its content through interpretation. The fact that no custom providing that the grave-site right is a right for consideration has ever been confirmed is evidence to the contrary showing that the grave-site right was, by custom, gratuitous. In light of the general legal principles on superficies, the differences between the grave-site right and statutory superficies, and the purpose for which acquisition of the grave-site right by prescription has been recognised under customary law, the holder of the grave-site right cannot be regarded as having an obligation to pay land rent.

In particular, the passage in the judgment that directly supports the conclusion is the following: "[Majority Opinion] Even where a person installed a grave on another's land before January 13, 2001, the effective date of the former Act on Funeral Services, etc. as wholly amended by Act No. 6158 on January 12, 2000 (hereinafter the 'Funeral Services Act'), and thereafter acquired a grave-site right by prescription by possessing the grave site peaceably and openly for 20 years, the holder of the grave-site right should be regarded as obliged, once the landowner demands land rent for the grave site, to pay land rent from the date of the demand"

This sentence is not merely an abstract declaration; it serves as the reference point confirming the legal premise on which the judgment of the court below was upheld.

Sources for this section: Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 — official text of the decision, National Law Information Center

Key Determinative Factors Identified in the Judgment and a Record Cross-Check Table

The table below sets out the determinative factors to which the Court gave weight in judgment 2017Da228007 and the role each factor played in the disposition (dismissal).

Sources for this section: Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 — official text of the decision, National Law Information Center

Competing Readings of the Same Facts

In this case, the court below held that, even where a grave-site right has been acquired by prescription, the holder of the grave-site right is obliged to pay land rent at least from the time the landowner demands payment of land rent, and accordingly upheld the plaintiffs' claim for land rent in part; the defendant appealed against that judgment. Under the Supreme Court's legal principle, the matter is determined in consideration of the legal nature of the right recognised under customary law and the purpose for which it is recognised, the balancing of interests between the parties, and harmony with the legal order as a whole.

Accordingly, when analysing similar cases, one should not merely cite the concluding sentence, but should test, as a counter-hypothesis, how the conclusion would change if any one of the determinative factors listed in the table above were absent.

Sources for this section: Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 — official text of the decision, National Law Information Center

Remaining Questions and Conditions for Re-examination

The follow-up question that remains after reading this judgment is as follows: where will the balance struck between respecting long-standing reliance on gratuitous possession and imposing consideration for a permanent restriction on ownership be unsettled again?

It is also clear in what circumstances, as further materials or precedents accumulate, this framework of determination should be re-examined. This determination should be revisited when the date on which the landowner demanded land rent and the basis on which the court calculated the amount of land rent become the focus of the record.

This is a research analysis prepared by cross-checking, as of October 21, 2026, the original text and the referenced provisions of Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021, as published on the National Law Information Center; it does not substitute for the conduct of litigation on behalf of any particular party or for legal advice.

Sources for this section: Supreme Court en banc Decision 2017Da228007 rendered on April 29, 2021 — official text of the decision, National Law Information Center