[Asia Economy Reporter Baek Kyunghwan] The existing precedent regarding the right to use land for burial sites (Bunmyo Gijigwon) has changed. Bunmyo Gijigwon is a right recognized under customary law. Even without the landowner's permission, if a burial site has been publicly maintained for over 20 years without using forceful methods, the caretaker gains the right to occupy the adjacent land. Until now, those who obtained Bunmyo Gijigwon did not pay separate land usage fees.
However, the recent Supreme Court en banc ruling determined that even if one acquires rights to adjacent land by managing a grave for a long period, if the landowner's permission was not obtained, land usage fees must be paid.
Mr. A filed a lawsuit in 2014 demanding that Mr. B, who was managing ancestral graves on his land, pay land usage fees. At that time, Mr. A had purchased the land through an auction, but the land contained Mr. B's ancestral graves. Mr. A argued that since he acquired ownership of the land in October 2014, Mr. B should pay land usage fees, but Mr. B refused, claiming he had acquired Bunmyo Gijigwon.
The first trial court dismissed Mr. A's claim, citing existing Supreme Court precedents that if Bunmyo Gijigwon is acquired through the passage of time, land usage fees are not required.
However, the second trial court judged that because Mr. B occupied land near the graves, Mr. A would face difficulties using other parts of the land. The court stated, "In reality, landowners face many restrictions on using the remaining land due to the existence of Bunmyo Gijigwon," and ruled, "It is highly unfair to consider that no land usage fees can be received for the burial site portion."
The en banc also held that even if Bunmyo Gijigwon is acquired, if the landowner demands land usage fees, the person who installed the grave must pay usage fees. The court ruled, "Even if the right to use the burial site was acquired by peacefully and publicly occupying the burial site for 20 years, the holder of Bunmyo Gijigwon has the obligation to pay the land usage fees from the date the landowner demands such fees."
However, two Supreme Court Justices, Ahn Cheolsang and Lee Dongwon, dissented, stating, "If peaceful and public occupation of the burial site has continued for more than 20 years, it is natural to consider that the landowner implicitly allowed free land use," and "It is natural to view that the holder of Bunmyo Gijigwon has occupied the burial site with such understanding," thus arguing there is no obligation to pay land usage fees.
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