[상속한정승인][미간행]
The case reversing the order of the court below which dismissed a request for a trial by an inheritor seeking acceptance of a report of qualified acceptance on the ground that, even if the inheritor was aware of the commencement of inheritance before May 27, 1998, the inheritor did not know the fact that the inheritance obligation exceeds inherited property within the period under Article 1019(1) of the Civil Act without gross negligence, and became aware after May 27, 1998, the qualified acceptance report can be filed within three months from the enforcement date of the amended Civil Act (amended by Act No. 7765 of Dec. 29, 2005).
Article 1019(1) and (3), and (4) of the Civil Act (amended by Act No. 7765, Dec. 29, 2005) (amended by Act No. 7765, Jan. 14, 2002)
Re-appellant
Jeonju District Court Order 2002BB13 dated August 13, 2002
The order of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.
The court below held that ① the Re-Appellant's report of qualified acceptance that was made on April 11, 202 by the time when he had become aware of the death of the decedent at the time of July 15, 1996 is illegal and illegal, and ② the former Civil Act (amended by Act No. 6591, Jan. 14, 2002; hereinafter "the former Civil Act") was amended by Act No. 7765, Dec. 29, 2005; hereinafter "the former Civil Act") Article 1019 (3) of the former Civil Act cannot be applied to the Re-Appellant's report of qualified acceptance that was made on April 15, 200 before the amendment of the Civil Act (Article 1019 (3) of the former Civil Act, which was made on July 15, 196; 3. The Re-Appellant's report of qualified acceptance cannot be viewed as an application of the former Civil Act No. 970, May 27, 1998.
2. However, the Constitutional Court rendered a ruling of inconsistency with the Constitution on January 29, 2004 on the ground that the inheritance was commenced before May 27, 1998, but the person who became aware of the fact that the inheritance obligation exceeded the inherited property goes against the principle of equality, etc. excluding the person subject to the application of Paragraph 3 of the Addenda of the Civil Act before the amendment, which was the premise of such judgment by the court below, and accordingly, the amended Civil Act (amended by Act No. 7765 of Dec. 29, 2005, hereinafter referred to as the "Revised Civil Act") was established under Paragraph 4 of the Addenda of the Civil Act before the amendment, and did not know of the fact that the inheritance obligation exceeded the inherited property within the period of 10 days before the commencement of the inheritance without any gross negligence, and thus, the person who did not know of the fact that the inheritance obligation exceeded the inherited property within the period of 197 days before the amendment of the Civil Act was made within 197 days after the amendment of the Civil Act.
Nevertheless, the order of the court below that maintained the decision of the court of first instance that rejected the appeal of this case by applying Paragraph 3 of the Addenda to the Civil Code before the amendment, which was eventually erroneous in the misunderstanding of legal principles as to Article 4 of the Addenda to the amended Civil Code and the qualified acceptance, which affected the conclusion of the decision.
3. Therefore, the order of the court below is reversed, and 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 Kim Yong-dam (Presiding Justice)