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?
By Hong Seung-kwon, Attorney at Law, PAN Law Firm (skh@law-pan.com)
Disputes involving gravesites arise from time to time in Korea. For example, a grave maintained by a family for many years may be classified as unclaimed, leading to its exhumation and the cremation of the remains. In such cases, questions arise over whether a customary right to use the gravesite has been established and whether damages can be claimed from the landowner who removed the grave or the administrative authority that approved the removal.
The first concept to consider is the person responsible for ancestral rites. Under Korean law, this status is linked to the right and responsibility to protect and manage ancestral graves and property used for ancestral rites. Determining who holds this position is therefore an important starting point when deciding who may exercise legal rights following damage to or the unauthorized removal of a grave.
In the past, the eldest male descendant was generally recognized as the person responsible for ancestral rites. Under the current standard, however, when co-heirs cannot reach an agreement and no exceptional circumstances exist, the nearest lineal descendant of the deceased assumes that role regardless of gender or whether the person was born in or outside marriage. When several lineal descendants are equally related to the deceased, the eldest takes precedence. The relevant standard is determined at the time the property used for ancestral rites is inherited, meaning that the former rule may still apply in some cases.
Another important concept is the customary right to use land for a gravesite, known in Korean law as bunmyogijigwon. It is a customary-law property right allowing a person who has established a grave on another person’s land to use the land to the extent necessary to maintain the grave and conduct ancestral rites. The right may arise when the landowner consented to the grave’s installation. It may also be acquired by prescription if the grave has remained in place openly and peacefully for an extended period, even without the owner’s consent.
The Act on Funeral Services, Etc., which took effect in 2001, imposed certain restrictions on the recognition of this customary gravesite right. Graves established before the law took effect, however, may still qualify for the right and therefore retain legal significance. Article 27 of the Act permits the removal of graves installed on another person’s land when specified conditions are met. When the identity of the person connected to a grave cannot be determined, procedures including a public notice for a prescribed period must also be followed.
A dispute may arise when a landowner concludes that a grave is unclaimed and proceeds with its removal. Graves are often located in mountainous areas, where family members may visit only once or twice a year to clear vegetation and maintain the site. A landowner may therefore mistakenly assume that a grave with surviving family members is unclaimed. For the same reason, relatives who rarely visit the site may fail to see a public notice announcing its proposed removal.
Compliance with the required public notice procedure does not automatically eliminate civil liability. If a landowner knew that the grave had surviving relatives, or could have discovered their existence by exercising reasonable care, but deliberately treated the grave as unclaimed, the removal may constitute a tort under civil law. An administrative authority may also face potential liability if it issued an unlawful permit after seriously neglecting the review or investigation required by law. Conversely, liability may be difficult to establish when all legally required procedures were followed and the objective circumstances at the time made it difficult to identify the relatives or confirm the existence of a customary gravesite right.
Emotional harm is another important issue when a grave has been removed without authorization. Family members may suffer considerable distress when the grave of an ancestor they have maintained for years is excavated against their wishes and the remains are cremated and placed elsewhere. A claim for compensation for emotional distress may be strengthened if they were given no opportunity to conduct ancestral rites during the exhumation, collect the remains themselves, or decide where the remains would be cremated or enshrined.
In Korean society, a gravesite is a place where families commemorate their ancestors and preserve shared memories. This emotional significance, however, does not automatically constitute a legally protected right. When a grave has been removed without authorization, the person seeking compensation must first determine their legal status in relation to that grave. Based on that status, they should carefully assess whether they have grounds to claim damages.
About the Author
Hong Seung-kwon is an attorney at PAN Law Firm. 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.
