Law Firm Doksan, Attorney Park Jae-san

Attorney Park Jong-cheon, Lee Gyeong-cheon, Park Gyeong-young and Park Young-young

Law Firm Newly Inserted by Presidential Decree No. 2010

Attorney Cho Yong-il, Attorneys Lee Jin-hoon, Lee Jin-hun, Lee Jin-hun, and Nam-young

Law Firm LLC et al., Counsel for the defendant-appellant

[Defendant-Appellee] The Head of Sil Seo-gu Office

1. The negligence from the inherited property (hereinafter “the negligence from inherited property”) had not existed at the time of commencement of the inheritance after the commencement of the inheritance. In the case of a division trial of inherited property, without considering the negligence from the inherited property, where the specific inherited property among the inherited property subject to division is owned by one or more inheritors, and the specific inherited property is divided into inherited property by means of cash settlement of the difference between the specific inherited property and the value of the specific inherited property (so-called the subject division method), the inheritor to whom the specific inherited property is divided shall be deemed to have retroactively owned at the time of the commencement of the inheritance pursuant to the main sentence of Article 1015 of the Civil Act, but the negligence may not be deemed to have retroactively owned at the time of the commencement of the inheritance. In this case, barring any special circumstance, it is reasonable to view that the co-inheritors acquired the inherited property at the time of the commencement of the inheritance in accordance with the ratio of “specific inherited property” calculated by taking account of the inheritance property, contributory portion, etc. (see, e.g., Supreme Court Decision 201237Da271427.).

2. The reasoning of the lower judgment and the record reveal the following facts.

A. On August 27, 2006, the deceased C (hereinafter “the deceased”) died. At the time of the deceased’s death, the deceased’s heir had D, the deceased’s spouse, and the Plaintiff, Defendant, E, F, and G, who are children of the deceased, and the Plaintiff and the Defendant’s statutory inheritance portion among them are 2/13, respectively. However, in the inherited property division trial filed against the Plaintiff and the remaining inheritors after the deceased’s death, the instant real estate was divided into the inherited property by the method of the so-called division, and the real estate was divided into the Plaintiff and G having ownership of 1/2 shares, and the negligence, such as rents accrued from the instant real estate after the commencement of inheritance, was not included in the inherited property subject to division at the time of

C. The Defendant acquired rent of KRW 1,395,150,000 for the instant real estate from June 201, when a judgment on division of the said inherited property became final and conclusive after the commencement of inheritance (hereinafter “instant rent”).

3. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that all co-inheritors, including the Plaintiff and the Defendant, acquire the right to the instant rent according to the ratio of the “specific share of inheritance calculated at the time of commencing the inheritance by taking account of the inheritance property and the contributory portion.” Therefore, the lower court should have determined the amount to be ultimately reverted to the Plaintiff out of the instant rent based on the Plaintiff’s specific share of inheritance determined in the judgment on division of inherited property, and deliberated and determined on the Defendant’s petition for deduction.

Nevertheless, the lower court determined otherwise, that the amount equivalent to 1/2 of the instant rent acquired by the Defendant on the ground that the Plaintiff had the right to receive 1/2 of the instant rent, which is the statutory negligence, constitutes unjust enrichment in relation to the Plaintiff, insofar as the Plaintiff acquired ownership of 1/2 of the shares out of the instant real estate, retroactively from the date of commencing the inheritance due to the confirmation of the judgment on division of inherited property. In so doing, the lower court erred by misapprehending the legal doctrine on the reversion of inherited property’s negligence, which led to failure to exhaust all necessary deliberations, and thereby adversely affected the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo