[소유권말소등기][미간행]
Whether a lawsuit claiming cancellation of registration of inherited property against co-inheritors constitutes a lawsuit claiming recovery of inheritance, and the exclusion period of the claim for recovery of inheritance.
[1] Article 99 of the Civil Act; Article 999 (2) of the former Civil Act (amended by Act No. 6591 of Jan. 14, 2002); Article 47 (2) of the Constitutional Court Act
Song-su (Attorney Kim Jae-o, Counsel for the defendant-appellant)
Song-gu (Law Firm Sejong, Attorneys Seo Sung-sung et al., Counsel for the defendant-appellant)
Suwon District Court Decision 2003Na1875 delivered on August 27, 2003
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
1. In a case where, on the premise that a person is a true inheritor with respect to the inheritance of property, the ownership or a right of share arising from the inheritance claims the ownership of property, such as the ownership or a right of share arising from the inheritance, and the claim for the cancellation, etc. of the registration on the real estate, which is the inherited property, is filed against some co-inheritors who have succeeded to the property, insofar as the assertion that the ownership or a right of share belongs to the property is based on the inheritance, regardless of the cause of the claim, it is reasonable to interpret the claim as a lawsuit for the recovery of inheritance under Article 999 of the Civil Act (see, e.g., Supreme Court en banc Decision 90Da5740, Dec. 24, 191; Supreme Court Decision 94Da1
According to the records, although the plaintiff et al. and the defendant received joint inheritance of the real estate of this case, the plaintiff et al. and the defendant voluntarily made the registration of ownership transfer on the ground of inheritance of the whole real estate of this case under the defendant's sole name without a property division agreement. Among the registration of ownership transfer, the part corresponding to the defendant's share in excess of the defendant's inheritance's share in the registration of ownership is null and void and seek cancellation of the above registration as to 1/20 share in the plaintiff's share in the defendant against the defendant. Thus, the plaintiff alleged that the right to share in the real estate of this case belongs to the plaintiff on the ground of inheritance and sought cancellation of part of the registration of inherited property against the defendant who made the registration of ownership transfer under the name
In this regard, the decision of the court below that the plaintiff's lawsuit of this case constituted a lawsuit for recovery of inheritance is just, and there is no error of law by misapprehending the legal principles on the lawsuit for recovery of inheritance of property and by violating the previous
2. However, the court below held that Article 999(2) of the Civil Act (amended by Act No. 6591, Jan. 14, 2002; hereinafter referred to as the "Revised Civil Act") provides that "the claim for recovery of inheritance shall expire after the lapse of three years from the date on which it became aware of such infringement, and ten years from the date on which the right to inheritance was infringed," and that the lawsuit of this case is unlawful on the ground that the defendant's registration of transfer of ownership in the name of the defendant was completed on July 9, 1985, when the exclusion period from 10 years from July 9, 1985, when the right to inheritance was completed. This decision of the court below is hard to accept in the following respect.
Article 99(2) of the former Civil Act (amended by Act No. 6591, Jan. 14, 2002; hereinafter referred to as the "former Civil Act") provides that "10 years from the date of commencement of inheritance" shall be unconstitutional upon the decision of 99HunBa9, 26 and 84, 200HunBa1, 200HunBa13 and 2001HunBa23, July 19, the Constitutional Court decided that "10 years from the date of commencement of inheritance" in Article 999(2) of the former Civil Act (amended by Act No. 6591, Jan. 14, 200; hereinafter referred to as the "former Civil Act") shall be unconstitutional (the pertinent case which made a request for adjudication of unconstitutionality, or made a request for adjudication of unconstitutionality before the decision of unconstitutionality is unconstitutional, and there is no provision of the amended Civil Act No. 920, Feb. 19, 1997).
Ultimately, the court below erred in applying the legal provisions on the limitation period of a lawsuit for recovery of inheritance, and the ground of appeal pointing this out is with merit.
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Hyun-chul (Presiding Justice)