Constitutional Court: "If a grave is installed on someone else's land... a right of use must be granted after 20 years of possession"

[Asia Economy Reporter Baek Kyunghwan] The Constitutional Court has ruled that the customary law allowing the acquisition of a burial site right (Bunmo Gijigwon) if one has peacefully occupied a grave on someone else's land for 20 years without permission is constitutional.

On the 8th, the Constitutional Court announced that it made a constitutional ruling by a 7 to 2 vote in a constitutional review petition claiming that the burial site right, which allows the use of another person's land to establish a graveyard, violates the principle of prohibition of excessiveness.

Mr. A, who inherited land from his parents in 1990, recently removed a grave on his land, cremated the remains, and moved the ashes elsewhere, but was sued for damages by Mr. B, who had managed the grave. Mr. B claimed the burial site right, stating he had been using and managing the grave since 1957.

The burial site right is a customary real right acquired by a person who has peacefully and openly occupied a grave for 20 years. While rights to land generally require registration, the burial site right is recognized under customary law.

Mr. A filed a constitutional petition arguing that the provision allowing acquisition of real rights by occupying a grave on another person's land without permission for 20 years infringes on individual property rights.

However, the Constitutional Court stated, "Forced relocation of graves inevitably leads to not only economic loss but also the loss of emotional attachment formed through the grave and regional bonds," and added, "The necessity to protect the burial site right still exists." Although there is no limitation in principle on the statute of limitations for rights, since the requirement is for 'peaceful and open occupation,' it is difficult to see this as an excessive restriction on property rights.

However, Justices Eun-Ae Lee and Jong-Seok Lee expressed the opinion that "customary law cannot be regarded as a norm with the same effect as laws enacted by the National Assembly under the Constitution," and thus it cannot be subject to constitutional review.

This content was produced with the assistance of AI translation services.