Series Order
Part 1 | When a Company Fails to Pay for a Transaction
Part 2 | Continued Use of a Business Name and the Transferee’s Liability
Part 3 | A Company Director’s Liability for Damages
Part 4 | The Person Hiding Behind a Company
Part 5 | What to Consider After Being Assaulted
Part 6 | What Is an Appropriate Criminal Settlement Amount?
Part 7 | If You Cannot Remember What Happened After Drinking, Could It Constitute Quasi-Rape?
Part 8 | Freelancers and Severance Pay
Part 9 | What to Consider When Assigning a Claim to Secure Business Financing
Part 10 | Can You Divorce a Foreign Spouse Who Has Disappeared?
Part 11 | Can a Tenant Terminate a Lease If the Landlord Delays Repairs?
Part 12 | Can a Subcontractor Receive Payment If the Main Contractor Disappears?
Part 13 | What to Know Before Your First Police Interview
Part 14 | Can a Buyer Recover a Deposit Before Receiving Approval for a Contract in a Land Transaction Permit Zone?
Part 15 | Is Entering Another Person’s Home While Concealing a Criminal Purpose Trespassing?
Part 16 | Impersonating Another Person on Instagram Can Lead to Criminal Punishment
Part 17 | When Does Indecent Assault Occur?
Part 18 | When Repairs Are Required After a Water Leak, Can the Tenant Decide How the Work Is Done?
Part 19 | How Far Does a Real Estate Agent’s Duty to Explain Extend?
Part 20 | Does Swearing in a Residential Area Constitute Criminal Insult?
Part 21 | Can Damages Be Claimed for Incorrect Tax Advice Without a Formal Engagement Agreement?
Part 22 | Can Families Claim Damages for the Exhumation of an Ancestral Grave?
Part 23 | How Far Does Individual Liability Extend in Cambodia-Based Scam Rings?
Part 24 | When Does Filming Sexual Activity Between Partners Constitute a Crime?
Part 25 | Childcare Corporation Assets Can Pass to Designated Recipients After Dissolution
Part 26 | What Buyers Must Check Before Purchasing Land with Graves
By Hong Seung-kwon, Principal Attorney, PAN Law Office (skh@law-pan.com)
A prospective buyer of land or forest property may discover that several old graves are located within its boundaries. When the graves appear to have been neglected for many years, it can be tempting to assume that they are unclaimed and can simply be relocated after the purchase. Land containing graves, however, requires the buyer to examine legal issues involving customary gravesite rights and statutory exhumation procedures in addition to ownership.
An unclaimed grave does not simply mean a grave that has not been maintained. Even if the vegetation has not been cleared for years or the headstone bears no name, a person connected to the grave may still exist. Buyers should not classify a grave as unclaimed solely from its appearance. They must investigate when and how it was established and whether any relatives or other connected persons can be identified.
Particular attention should be paid to the customary gravesite right known in Korean law as bunmyogijigwon. This customary-law right allows a person to use another person’s land to protect and maintain a grave located there. For graves installed without the landowner’s consent before the Act on Funeral Services, Etc. took effect on January 13, 2001, the Supreme Court recognizes acquisition of this right by prescription when the land was occupied peacefully and openly for 20 years. Graves installed without the landowner’s consent after that date generally cannot acquire the right through prescription. A separate review remains necessary because some graves may have been established with the landowner’s consent.
How, then, can a grave be relocated when no connected person can be identified? Under Article 27 of the Act on Funeral Services, Etc., a landowner may obtain an exhumation permit from the competent mayor, county governor or district head after completing the prescribed procedures for a grave installed without the owner’s consent. Notice of the intended exhumation must be given or published at least three months in advance. When the connected person is unknown, notice must be published at least twice in the manner prescribed by law, with the second notice issued at least 40 days after the first. If no one comes forward, the landowner may obtain a permit, cremate the remains and keep them enshrined for the legally prescribed period.
The situation becomes more complicated when several graves are located on the property. Each grave may have a different date of establishment, a different connected person and a different legal basis for using the land. They cannot all be treated collectively as unclaimed graves. Some may be exhumed through statutory procedures, while others may require negotiation with relatives over relocation. The process may generate substantial costs and delay a development project for an extended period.
Before signing a contract to purchase such land, the buyer should inspect the site to establish the number and location of the graves and, where possible, obtain information about when they were installed and who is connected to them. The sales contract should clearly identify who is responsible for relocating the graves and paying the associated costs. It should also include a special clause allowing the buyer to terminate the contract or claim damages if the seller fails to complete the relocation by a specified deadline. The parties may also consider making completion of the relocation a condition for payment of the remaining purchase price.
A person who has already purchased the land must not excavate a grave or move human remains without authorization merely because they own the property. Excavating a grave without following the lawful procedures may result in criminal liability. A transaction involving land with multiple unclaimed graves therefore requires an assessment of the feasibility, time and cost of relocation as well as the purchase price. Because customary gravesite rights do not appear in the land registry, buyers must inspect the property and obtain relevant information directly from the seller.
About the Author
Hong Seung-kwon is the principal attorney of PAN Law Office. His practice covers civil and criminal litigation as well as emerging legal issues in the digital era. He continues to examine how technological innovation, property rights and changes in regulatory policy affect law and market order.
