〈Case in which a descendant who is not the person presiding over ancestral rites claimed consolation money against persons who excavated the deceased's graves, etc.〉

【Holding】

[1] Where an act of excavating a grave or damaging a corpse or remains infringes a person's personal legal interests, such as feelings of reverence for the deceased, and causes mental suffering, whether that person may claim consolation money for mental suffering against the person who excavated the grave, etc., even if he or she is not the person presiding over ancestral rites who holds the right to manage and dispose of the grave (affirmative), and the criteria for determining whether an act such as excavating a grave infringed a person's personal legal interests, such as feelings of reverence for the deceased, and caused mental suffering

[2] In a case where A and B, for the purpose of developing the forest land on which graves were located, obtained a written undertaking to relocate the graves from C, the eldest grandson of the lineage and the person presiding over ancestral rites of the deceased persons buried in the graves, and then dug up the graves, removed the remains of the deceased persons buried therein, placed them all together in a tin container, burned them, and buried them in the ground near the entrance to the graves, and D, a child or grandchild of the deceased persons who had actually managed the graves, claimed consolation money alleging that D suffered mental suffering due to the act of A and others damaging the remains, the Court held that the lower court's judgment, which found that D could not be awarded consolation money because D was not the person presiding over ancestral rites holding the right to manage and dispose of the graves, without properly examining and determining the matter, even though there was room to find that D had a right to claim consolation money because D's personal legal interests, such as feelings of reverence for the deceased, were infringed and D suffered mental suffering due to the act of A and others damaging the remains, was erroneous in its misapprehension of legal principles, etc.

【Summary of Decision】

[1] Where there was an act of excavating a grave or damaging a corpse or remains, and it is found that such act infringed a person's personal legal interests, such as feelings of reverence for the deceased, thereby causing mental suffering, that person may claim consolation money for the mental suffering against the person who excavated the grave or damaged the corpse or remains. The persons who may claim such consolation money are not limited to the person presiding over ancestral rites who holds the right to manage and dispose of the grave. Whether an act of excavating a grave or damaging a corpse or remains infringed a person's personal legal interests, such as feelings of reverence for the deceased, thereby causing mental suffering, must be determined individually and specifically in each case by comprehensively taking into account various circumstances, such as the circumstances and motive that led the actor to excavate the grave or dispose of the corpse or remains, whether the excavation of the grave or disposal of the corpse or remains was carried out in a manner acceptable under social norms, the kinship or living relationship during the deceased's lifetime between the person alleging infringement of feelings of reverence, etc. and the deceased, the usual state of management of the grave, etc., and the state of damage to the grave or the corpse or remains.

[2] In a case where A and B, for the purpose of developing the forest land on which graves were located, obtained a written undertaking to relocate the graves from C, the eldest grandson of the lineage and the person presiding over ancestral rites of the deceased persons buried in the graves, and then dug up the graves, removed the remains of the deceased persons buried therein, placed them all together in a tin container, burned them, and buried them in the ground near the entrance to the graves, and D, a child or grandchild of the deceased persons who had actually managed the graves, claimed consolation money alleging that D suffered mental suffering due to the act of A and others damaging the remains, the Court held that, considering all the circumstances, including the fact that the act of A and others caused irreversible damage such as the loss of the deceased persons' remains or their commingling to the point of being indistinguishable, A and others disposed of and damaged the remains in a manner beyond the scope acceptable under social norms, and there was room to find that D thereby suffered mental suffering through the infringement of D's personal legal interests, such as feelings of reverence for the deceased, and thus had a right to claim consolation money against A and others; nevertheless, the lower court, without properly examining and determining the matter, found that D could not be awarded consolation money because D was not the person presiding over ancestral rites holding the right to manage and dispose of the graves, and the lower court's judgment was therefore erroneous in its misapprehension of legal principles, etc.

【Referenced Statutes】

[1] Articles 751 and 1008-3 of the Civil Act [2] Articles 751 and 1008-3 of the Civil Act


(Source: Supreme Court Decision 2023Da283401, March 27, 2025 | Judicial Information Disclosure Portal, Precedents)