Prescriptive Acquisition of the Customary-Law Grave-Site Right and Rent, and the Attribution of Real Rights in Title-Trust Real Estate: The Boundaries of Three Civil Property Law Judgments

Question

Drawing on three en banc judgments, this brief examines whether a customary-law grave-site right may be acquired by prescription over a grave installed before the Act on Funeral Services, Etc. took effect, when the obligation of a holder of a prescriptively acquired grave-site right to pay rent arises, and the doctrine excluding the rule on performance for an illegal cause in a title trust that violates the Act on the Registration of Real Estate under Actual Titleholder's Name.

The first issue is the question addressed in Judgment 2017Da228007, namely: "Must a person who has acquired a grave-site right by prescription through 20 years' possession of the site of a grave on 400 m² of forest land pay rent from the date of the demand?" The second issue is the question addressed in Judgment 2013Da17292: "Does a person who possesses for 20 years the site of a grave installed before 13 January 2001 acquire a grave-site right by prescription?"

The third issue is the question addressed in Judgment 2013Da218156: "In a title trust made to circumvent the Farmland Act, may the truster seek cancellation of the registration in the trustee's name?" All three judgments ask how, on the record, the boundaries of the statutory text are to be distinguished from the substantive factors to be weighed.

Material to check

First (2017Da228007): this judgment addresses whether, where a person has installed a grave on another's land before the effective date of the Act on Funeral Services, Etc. and acquired a grave-site right by prescription through 20 years' possession, that person must, upon the landowner's demand, pay rent from the date of the demand. To establish when the grave was installed, the period of possession and whether rent was demanded, the records showing when the grave was installed, the records showing the state of possession and the notification records showing the demand for rent are examined. Once the date of the demand is established, whether the obligation to pay rent begins on that date is set out by comparison with the record.

Second (2013Da17292): this judgment addresses whether the customary-law norm under which a person who installs a grave on another's land and possesses its site peacefully and openly for 20 years acquires a grave-site right by prescription continues to apply to this day to graves installed before the effective date of the Act on Funeral Services, Etc. To establish when the grave was installed and the period of possession, the records showing the time of installation and the records showing the state of possession are examined. Materials showing the scope of application of the Addenda to the Act on Funeral Services, Etc., the overall system of the legal order and changes in the perceptions of members of society are compared alongside them and set out.

Third (2013Da218156): this judgment addresses whether, where registration has been made in the trustee's name pursuant to a title trust agreement that is void for violating the Act on the Registration of Real Estate under Actual Titleholder's Name, the truster is barred by the rule on performance for an illegal cause from seeking cancellation of the registration against the trustee, and whether the same applies where the purpose was to circumvent restrictions under the Farmland Act. To establish the formation of the title trust agreement, the circumstances of the registration and the attribution of ownership, the written agreement, the register entries and the records relating to the surcharge and the charge for compelling compliance are examined. Records showing whether there was a purpose of evading a disposal order under the Farmland Act are compared alongside them and set out.

Possible readings

In Case 2017Da228007, as to when the obligation of a holder of a grave-site right acquired by prescription to pay rent arises, three readings were opposed: the majority opinion held that rent is payable from the date on which the landowner demands it; a separate opinion held that rent accrues from the time the grave was installed; and the dissenting opinion held that there is no obligation to pay rent.

In Case 2013Da17292, two readings were opposed: that the customary law on prescriptive acquisition of the grave-site right continues to apply to this day to graves installed before 13 January 2001, and that the customary law has ceased to conform to the overall legal order and has thus lost its effect as a legal norm.

In Case 2013Da218156, two readings were opposed: that a title-trust registration in violation of the Act on the Registration of Real Estate under Actual Titleholder's Name cannot be assumed automatically to constitute performance for an illegal cause, and that it constitutes performance for an illegal cause unless there are special circumstances.

What the decisions held

Supreme Court en banc Judgment 2017Da228007 delivered 29 April 2021 held as follows: "In determining the content of a right recognised by customary law, a reasonable judgment must be made in consideration of the legal nature of the right and the purpose of its recognition, the balancing of interests between the parties, and harmony with the overall legal order." Through this judgment, the majority opinion established the standard that the content of a customary-law right is determined by its legal nature and the purpose of its recognition, the balancing of interests and harmony with the overall legal order. A grave-site right acquired by prescription is a right akin to superficies that arises without agreement and can restrict ownership of the land in effect permanently. Drawing together the historical background, reliance on the factual situation, the special character of the right, reason (jori) and good faith, and the purport of Article 286 of the Civil Act, among others, the majority recognised an obligation to pay rent from the date of the demand. To the extent inconsistent with this, Supreme Court Judgment 92Da13936 delivered 26 June 1992 and Supreme Court Judgment 94Da37912 delivered 28 February 1995 were overruled.

Supreme Court en banc Judgment 2013Da17292 delivered 19 January 2017 held as follows: "Furthermore, it is also difficult to conclude that a significant change has occurred in the overall system of the legal order surrounding the grave-site right such that the existing customary law on prescriptive acquisition of the grave-site right no longer conforms to the overall legal order, with the Constitution as its supreme norm, or that its legitimacy and rationality can no longer be recognised." The starting point of this judgment is that the rule under which a person who installs a grave on another's land and possesses its site peacefully and openly for 20 years acquires a grave-site right by prescription is long-standing customary law. The judgment sets the standard that, to deny the effect of customary law, a clear change must be shown in the overall system of the legal order, in perceptions and attitudes, and in the social and cultural background. Because the Addenda to the Act on Funeral Services, Etc. expressly provide that the limit on the period of installation and the restriction on asserting a right to use the land apply only to graves installed on or after 13 January 2001, the Court held that the basis for graves installed before the Act took effect had not disappeared. The judgment relies on the facts that Article 185 of the Civil Act recognises real rights under customary law, that the prescription system protects a long-standing order, and that landowners have means of interrupting prescription. Even taking account of changes in attitudes such as the rising cremation rate, burial culture persists, private cemeteries are permitted and there is no material showing that the conviction underlying the custom has disappeared; the Court therefore maintained the custom for graves installed before 13 January 2001.

Supreme Court en banc Judgment 2013Da218156 delivered 20 June 2019 held as follows: "Even if registration is made in the name of the title trustee pursuant to a title trust agreement, the change in real rights to the real estate does not take effect." Through this judgment, the Supreme Court held that, because Article 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name renders both the agreement and the change in real rights void, ownership remains with the truster. The Court held that the protection of third parties under Article 4(3) and the charge for compelling compliance under Article 6 presuppose that ownership belongs to the truster. It stated that the legislature rejected the option of vesting ownership in the trustee and chose that of vesting it in the truster, and that any interpretation departing from the framework of Article 4 must remain an exception. The Court pointed out that depriving the truster of the right itself, beyond criminal punishment and the surcharge, is inconsistent with the public sense of justice and the guarantee of property rights. It held that even where circumvention of the Farmland Act is also involved, the illegality is not greater than that of the violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, so the conclusion does not change.

Practical checklist

First, must a person who has acquired a grave-site right by prescription through 20 years' possession of the site of a grave on 400 m² of forest land pay rent from the date of the demand? Establish, from the dispositive documents and the objective circumstances, when the grave was installed, the period of possession, whether rent was demanded and the date of the demand, and check these against the standard for determining whether rent is payable from the date of the demand.

Second, does a person who possesses for 20 years the site of a grave installed before 13 January 2001 acquire a grave-site right by prescription? Establish, from the dispositive documents and the objective circumstances, when the grave was installed and the period of possession, and check these against the standard for determining whether the customary-law norm continues to apply to graves installed before the Act on Funeral Services, Etc. took effect.

Third, in a title trust made to circumvent the Farmland Act, may the truster seek cancellation of the registration in the trustee's name? Establish, from the dispositive documents and the objective circumstances, the title trust agreement, the circumstances of the registration and the purpose of circumventing restrictions under the Farmland Act, and check these against the standard for determining that the registration does not constitute performance for an illegal cause.

Glossary

Basis and starting point of the obligation to pay rent for a customary-law grave-site right acquired by prescription (2017Da228007): The majority opinion established the standard that the content of a customary-law right is determined by its legal nature and the purpose of its recognition, the balancing of interests and harmony with the overall legal order. A grave-site right acquired by prescription is a right akin to superficies that arises without agreement and can restrict ownership of the land in effect permanently. Drawing together the historical background, reliance on the factual situation, the special character of the right, reason (jori) and good faith, and the purport of Article 286 of the Civil Act, among others, the majority recognised an obligation to pay rent from the date of the demand. To the extent inconsistent with this, Supreme Court Judgment 92Da13936 delivered 26 June 1992 and Supreme Court Judgment 94Da37912 delivered 28 February 1995 were overruled. The factors identified include the legal nature of the right and the purpose of its recognition, the balancing of interests between the parties, and harmony with the overall legal order.

Standard for deciding whether, after the Act on Funeral Services, Etc. took effect, possession of the site of a grave installed before that date remains protected by customary law (2013Da17292): The starting point is that the rule under which a person who installs a grave on another's land and possesses its site peacefully and openly for 20 years acquires a grave-site right by prescription is long-standing customary law. The judgment sets the standard that, to deny the effect of customary law, a clear change must be shown in the overall system of the legal order, in perceptions and attitudes, and in the social and cultural background. Because the Addenda to the Act on Funeral Services, Etc. expressly provide that the limit on the period of installation and the restriction on asserting a right to use the land apply only to graves installed on or after 13 January 2001, the Court held that the basis for graves installed before the Act took effect had not disappeared. The judgment relies on the facts that Article 185 of the Civil Act recognises real rights under customary law, that the prescription system protects a long-standing order, and that landowners have means of interrupting prescription. Even taking account of changes in attitudes such as the rising cremation rate, burial culture persists, private cemeteries are permitted and there is no material showing that the conviction underlying the custom has disappeared; the Court therefore maintained the custom for graves installed before 13 January 2001. The factors identified include the overall system of the legal order, the perceptions and attitudes of members of society, and the social and cultural background.

Title trust in violation of the Act on the Registration of Real Estate under Actual Titleholder's Name and whether it constitutes performance for an illegal cause (2013Da218156): The Supreme Court held that, because Article 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name renders both the agreement and the change in real rights void, ownership remains with the truster. The Court held that the protection of third parties under Article 4(3) and the charge for compelling compliance under Article 6 presuppose that ownership belongs to the truster. It stated that the legislature rejected the option of vesting ownership in the trustee and chose that of vesting it in the truster, and that any interpretation departing from the framework of Article 4 must remain an exception. The Court pointed out that depriving the truster of the right itself, beyond criminal punishment and the surcharge, is inconsistent with the public sense of justice and the guarantee of property rights. It held that even where circumvention of the Farmland Act is also involved, the illegality is not greater than that of the violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, so the conclusion does not change. The factors identified include the provisions and normative purpose of the Act on the Registration of Real Estate under Actual Titleholder's Name, the attribution of ownership of the trust real estate, and the principle of the guarantee of property rights.

Sources and limitations

This brief is based solely on the texts, as published on the Korea Law Information Center, of Articles 1, 103, 185, 245, 279, 366 and 746 of the Civil Act, Article 27 of, and Article 2 of the Addenda to, the Act on Funeral Services, Etc., and Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name, and on the texts of Supreme Court Judgment 2017Da228007 delivered 29 April 2021, Supreme Court Judgment 2013Da17292 delivered 19 January 2017 and Supreme Court Judgment 2013Da218156 delivered 20 June 2019.

This is academic research material setting out general legal doctrine and standards for reviewing the record; it is neither legal advice on any individual case nor an opinion for submission to a court.

Points left open

2017Da228007: Where might the balance, which respects reliance on long-term possession without charge while imposing a price for a permanent restriction on ownership, be unsettled again?

2013Da17292: What material would show that the conviction sustaining the custom for graves installed before 2001 has disappeared?

2013Da218156: How can title trusts be prevented while ownership is left with the truster?

When to reconsider

2017Da228007: This conclusion should be revisited if the date on which the landowner demanded rent and the basis on which the court calculated the amount of rent become central to the record.

2013Da17292: This should be re-examined if material is presented showing, in the record of a grave installed before 13 January 2001 rather than of a grave installed on or after that date as referred to in the Addenda to the Act on Funeral Services, Etc., a clear change in the overall legal order and in perceptions.

2013Da218156: This should be revisited if the framework of Article 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name or the framework for assessing illegality under Article 746 of the Civil Act changes.

Statutes referred to

• 민법 제1조, 제103조, 제185조, 제245조, 제279조, 제366조, 제746조
• 장사 등에 관한 법률 제27조, 부칙 제2조
• 부동산 실권리자명의 등기에 관한 법률 제4조 제1항·제2항

Decisions referred to

• 대법원 2021. 4. 29. 선고 2017다228007 전원합의체 판결 · Decision ledger
• 대법원 2017. 1. 19. 선고 2013다17292 전원합의체 판결 · Decision ledger
• 대법원 2019. 6. 20. 선고 2013다218156 전원합의체 판결 · Decision ledger

Verification status

The provisions cited (Articles 1, 103, 185, 245, 279, 366 and 746 of the Civil Act; Article 27 of, and Article 2 of the Addenda to, the Act on Funeral Services, Etc.; and Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name) and the judgments covered (Supreme Court Judgment 2017Da228007 delivered 29 April 2021; Supreme Court Judgment 2013Da17292 delivered 19 January 2017; Supreme Court Judgment 2013Da218156 delivered 20 June 2019) were checked, as at 15 October 2026, against the current statutes on the Korea Law Information Center and the original texts of the Supreme Court judgments. This brief cites only the three judgments listed among the judgments covered.