墳墓基地權에 관한 연구

A Study of The Right of the Tomb Superficies in Custom

The Right of the tomb superficies in custom is a right that the judicial precedents recognize the parallel surface right of owner of graves under certain conditions even by limiting other's dominion as it is an extension of Confucian filial piety , influenced by the theory of divination based on topography, and is in accordance with the social conscience setting a high value on ancestor's graves. However, there are criticisms on whether the Right of the tomb superficies in custom should be protected and maintained as it is. From the point view of business relation in actuality between private individuals, because there are possibilities of landowner's suffering the loss and such like, a proprietor's right ( infringement of right of property as well as limitation on owner's exercising his right) is arrogated too much On the other hand, the Right of the tomb superficies in custom can take out the Right of the tomb superficies in custom under certain condition and gets all its protection even if a grave is set up without landowner knowing. As The Right of the tomb superficies in custom benefits from the The Right of the tomb superficies in custom for nothing, it is apprehended that people get involved in trouble in the end. Therefore, we should admit the Right of the tomb superficies in custom considering Korean's deep-rooted tradition of protecting their ancestor's graves, a matter of limitation of landowner's rights and efforts to find agreement of the utilization and preservation of a territory.