The winter solstice is approaching.
Many people also put tomb sweeping and worship on the agenda.
But. If the cemetery is purchased in advance for the elderly.
was sealed with cement by his daughter-in-law.
And erase the name of life from the tombstone.
Can restitution be requested?
Can I claim compensation for moral damages?
Recently. Shanghai Pudong New Area People's Court.
Published together. Cases of infringement of destruction of cemeteries and tombstones.
Mrs. Wang's husband and eldest son died at an early age. In order to allow Mrs. Wang to be buried with them a hundred years later, the youngest son's family purchased a three-cave cemetery, one of which was reserved for Mrs. Wang to be buried in the future, and the name of the tomb was enshrined on the tombstone.
On the winter solstice of one year, when Mrs. Wang swept the tomb, she found that the vacant longevity hole was sealed by cement, and the longevity name on the tombstone was also erased. After checking with the cemetery management office, it was found that it was actually the daughter-in-law Hu.
It turned out that the two had a disagreement in their early years because of the division of interests in the relocation, and the little daughter-in-law who complained chose to "vent" in this way. After learning of the incident, Mrs. Wang was depressed, did not think about tea and dinner, and was seriously injured mentally and filed a lawsuit with the Pudong Court.
After trial, the Pudong court held that the purchase of tombs and the erection of monuments were folk customs, which were in line with public order and good customs, and should be protected by law. Because the tomb is a three-cave cemetery, the original tombstone text has clearly indicated that it is a joint burial site for Mrs. Wang, her husband and eldest son, and the user and purpose are specific and exclusive. Hu's conduct has constituted an infringement of Mrs. Wang's right to use the cemetery, and she should bear civil liability in accordance with the law and restore the cemetery to its original state.
At the same time, the right to use the cemetery has a specific personality symbolic meaning, and Hu's behavior clearly infringed on Mrs. Wang's spiritual interests, so the people's court decided to compensate Mrs. Wang for mental damage of 5,000 yuan. After the judgment of the people's court, neither party appealed, and the case has now taken effect.
What the judge said. 1. Determination of the purchase of tombs and the erection of monuments.
After the death of their parents, children should properly bury and place the remains or ashes of their parents, which is not only a traditional virtue of the Chinese nation, but also an extension of the legal obligation to support.
After the death of their parents, children purchase cemeteries for their parents (including a burial place for the surviving parents), with the aim of placing the ashes of their parents in a suitable place such as a cemetery in the cemetery for a long time and securely, so as to facilitate future sacrifices and mourning. Therefore, as a kind of folk custom, the purchase of tombs and the erection of monuments conform to the general concept of traditional ethics in our country and conform to socialist morality, and can be included in the scope of public order and good customs that should be observed in civil activities as stipulated in the Civil Code of our country.
2. Factors to be considered when determining the right to use cemeteries.
Since the tomb was a three-cave cemetery, the text on the original tombstone clearly indicated that the cemetery at issue was a joint burial site for Mrs. Wang, her husband and eldest son, which was sufficient to prove that the users of the cemetery at issue were Mrs. Wang, her husband and her eldest son. The above-mentioned users and uses are specific, and under normal circumstances, they are exclusive, and the daughter-in-law has no right to dispose of them without authorization.
3. Consideration of liability for moral damages.
Cemeteries and tombstones are a specific kind of objects, and their right to use them has their particularity and has a specific symbolic meaning of personality. Among the relevant usufruct interests, there are not only specific use values such as placing the ashes of the deceased, which have certain property interests, but also spiritual comfort purposes such as sacrificing the living and mourning deceased relatives, and contain strong elements of kindness and affection. At the same time, for example, the joint burial cemetery in this case also contains the good wishes of the living people who hope to be buried with their spouses and children in a hundred years. Obviously, Hu's conduct in this case infringed on Mrs. Wang's emotional interests to her spouse and children, causing relatively serious mental damage, so she should be liable for moral damages.
Links to legal provisions. 1. Civil Code of the People's Republic of China
Article 8: Civil entities engaging in civil activities must not violate the law and must not violate public order and good customs.
Article 1165:Where the perpetrator infringes upon the civil rights and interests of others due to fault and causes harm, they shall bear tort liability.
Article 1167:Where the tortious conduct endangers the safety of others' persons or property, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstacles, or eliminating dangers.
2. Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Moral Damages in Civil Torts
Article 4: Where specific commemorative items with personality symbolic significance are permanently lost or damaged as a result of infringement, and the owner of the item files a lawsuit with the people's court requesting compensation for moral harm on the grounds of infringement, the people's court shall accept it in accordance with law.
*: Shanghai Pudong Court.