According to the reasoning of the judgment below, the court below determined that the tax disposition of this case was justifiable on the ground that there was a legal obstacle in exercising the ownership of the land of this case at the time of the commencement of the inheritance, on the ground that the land of this case was provided for passage of neighboring residents, etc., on the ground that there was no legal obstacle in exercising the ownership of the land of this case, since it cannot be seen that there was no property value on the ground that the land of this case is provided for passage of nearby residents, etc., since the value of the land of this case is assessed as 20,763,536 won in 20,000,000 square meters from the 1,836 square meters prior to the commencement of the inheritance of the plaintiffs.

However, Article 9 of the Inheritance Tax Act and Article 5 (1) of the Enforcement Decree of the same Act provide that the value of inherited property shall, in principle, be based on the current status at the time of commencement of inheritance, and that the value of inherited property shall be based on the market price at the time of commencement of inheritance. However, the general rule 44 (9) of the Inheritance Tax Act provides that the actual road commonly used by many and unspecified persons is included in the inherited property, but the appraised value shall not be zero, except in cases where the market price at the time of commencement of inheritance is confirmed by the compensation price, etc., and where the inherited property is actually used by many and unspecified persons as a road at the time of commencement of inheritance regardless of its land category in the public record, the appraised value shall not be considered as property value, except in exceptional cases where the value of the inherited property is confirmed by the compensation price, etc. at the time of commencement of inheritance, and thus, the inheritance tax shall not

However, in light of the records, the land of this case is a de facto road that has been provided for the passage of many and unspecified neighbors before the predecessor acquired, and there is no compensation by the competent administrative agency. Considering the shape of the road, etc., it is impossible in reality to use the land exclusively by limiting the passage of neighboring residents and to request the neighboring residents to use it or use it for any purpose other than for the road.

Therefore, it is difficult to say that the land in this case has property value in substance at the time of commencing the inheritance. Although the land in this case is classified as a building site or a transfer on the public register, or is incorporated into a road under the Road Act, etc., there is no legal obstacle to the exercise of ownership, or the plaintiffs reported a part of the land in this case as the inherited property, it does not change. Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to the value of the actual inherited property in common use by many unspecified persons

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)