[증여세등부과처분취소][공1992.5.15.(920),1454]
In case where a part of co-inheritors acquires property exceeding an inherent share of inheritance due to a division of consultation, whether it shall be deemed a donation from other co-inheritors (negative)
Article 1015 of the Civil Act provides that the division of inherited property shall be effective retroactively from the time of commencement of the inheritance. As such, even if part of co-inheritors acquired property exceeding their own share of inherited property by a consultation and division under Article 1013 of the Civil Act regarding inherited property among co-inheritors, it shall be deemed that it was inherited from the inheritee retroactively at the time of commencement of the inheritance, and it shall not be deemed that another co-inheritors received a donation from the inheritee.
Article 29-2(1) of the Inheritance Tax Act; Articles 1015 and 1013 of the Civil Act
Supreme Court Decision 85Nu70 decided Oct. 8, 1985 (Gong1985, 1492) 87Nu692 decided Nov. 24, 1987 (Gong1988, 185) 88Nu9305 decided Sep. 12, 1989 (Gong1989, 1415)
Plaintiff 1 and five others
Head of Dong Tax Office
Seoul High Court Decision 90Gu10652 delivered on July 12, 1991
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) upon the death of the non-party 1 on May 5, 1987, the plaintiffs and the non-party 2, the non-party 3, the non-party 4, and the non-party 5 jointly inherited the above deceased's inherited property, but thereafter, the plaintiffs and the above non-party 1 entered into an agreement on the division to be acquired by the plaintiff 1 and the non-party 2; and (b) the non-party 2 entered into an agreement on the division to be acquired by the plaintiff 1 and the non-party 2 on the part of the non-party 2 on the part of the non-party 1, the non-party 2, who entered into a legal inheritance share registration for the reason of donation, and completed the registration of ownership transfer in accordance with the agreement that all the above successors were corrected after the registration of inheritance share based on the legal inheritance shares. Thus, the court below determined that even if the co-inheritors did not complete the registration of inheritance share registration, the above agreement was unlawful.
Article 1015 of the Civil Code provides that the division of inherited property shall take effect retroactively from the time of the commencement of the inheritance. Thus, even if part of co-inheritors acquire the property exceeding their own inherited property as a result of an agreement division under the provisions of Article 1013 of the Civil Code with respect to inherited property between them, it shall be considered to have been succeeded retroactively from the inheritee at the time of the commencement of inheritance, and it shall not be deemed to have been donated from other co-inheritors (see Supreme Court Decision 85Nu70 delivered on October 8, 1985). Examining the facts and records in light of the relevant evidence and records, the fact finding of the court below is just and acceptable, and there is no error of law such as incomplete deliberation, violation of the rules of evidence, or misapprehension of the legal principles, etc., such as the theory of lawsuit. There is no reason for the argument
Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-ho (Presiding Justice)