[2] In a case where Gap was designated as executor by the deceased Eul's will, and there was real estate and financial assets in the property to be distributed according to the above will, but most of the above financial assets had been known after the commencement of the inheritance, Gap demanded the inheritor to return the money already withdrawn and deposited the money remaining in Gap's deposit account, the case holding that the court below erred in the misapprehension of legal principles as to the status of executor and the reason for dismissal, solely on the ground that the inheritor's demand for distribution of the above deposit claims kept in the status of executor was rejected, and the court below erred in the misapprehension of legal principles as to the status of executor and the reason for dismissal

[2] In a case where Gap was designated as an executor by the deceased Eul's will, and there was real estate and financial assets in the property to be distributed by the above will, but most of the above financial assets were demanded from the inheritor to return the money already withdrawn and kept the money remaining in Gap's deposit account, the case holding that the court below erred by misapprehending the legal principles on the status of executor and the grounds for dismissal and failing to exhaust all necessary deliberation, on the ground that Gap refused the demand of the inheritor for distribution of the above deposit claims kept in the executor's position and it is difficult to conclude them as an neglect of duties or unfair performance of duties, even though it is difficult to expect a fair will due to the lack of specific circumstances to expect a fair will, and on the contrary, the court below's decision that concluded that there was a ground for dismissal as an executor is not proper solely on the above circumstances.

1. If an executor of a will is designated or appointed, the court may dismiss the executor upon the request of the inheritor or any other interested person (Article 1106 of the Civil Act). However, the executor of a will has the right and duty to manage the property which is the object of the testament and to perform all other acts necessary for the execution of the will (Article 1101 of the Civil Act). Furthermore, the executor of a will shall perform his duties in a neutral position on matters that conflict with the inheritor within the necessary extent for carrying out his will (see Supreme Court Decisions 200Da26920, Mar. 27, 2001; 2009Da20840, Oct. 28, 2010). It is evident that the executor’s request for provisional attachment or execution of his/her will is unreasonable solely on the grounds that the executor of a will would not have any conflict between his/her heir and some of his/her heir who causes interference with the execution of his/her will, etc. for faithful execution of his/her will.

2. The court below acknowledged the facts as stated in its holding, such as the Re-Appellant's designation as executor by the deceased principal's will and there was real estate and financial assets, and the Re-Appellant's transfer of approximately KRW 123 million remaining in the above will to the re-Appellant's deposit account to the re-Appellant's deposit account after the commencement of the inheritance to the effect that most of financial assets in the above will were already withdrawn after the commencement of the inheritance, and the Re-Appellant's transfer of approximately KRW 123 million remaining without the withdrawal to the claimant's deposit account. The court below held that the above will's validity and withdrawal of the will were inappropriate in light of the following reasons: although there was a dispute between the re-Appellant and the claimant, the Re-Appellant's provisional attachment or provisional attachment of the deceased's house owned by one of the petitioners, or without the delegation by the applicant other than the applicant's wife who already received the inherited property, and even if the claimant's domestic affairs's withdrawal of the deposit claim indicated in a notarial deed or withdrawal of the will, it cannot be justified.

However, according to the facts acknowledged by the court below, if most of the financial assets to be distributed to co-inheritors by the deceased's will are withdrawn and the claimant is under custody, the executor of the will shall have the authority and obligation to file a lawsuit seeking the return of the above will to the claimant directly as a party to the lawsuit or to take measures for preservation, such as provisional seizure, etc. for the faithful execution of the will. Furthermore, in light of the fact that the size of the deposit claims already withdrawn and the details of the money each claimant's custody cannot be accurately identified, the amount of distribution or return cannot be determined to each donee according to the intent of the will, it is difficult to conclude that the re-appellant refused the request for distribution of the above deposit claims kept in the executor's position as the executor's executor, and it is hard to conclude that the re-appellant's performance of his/her duties is an unfair performance of duties. Nevertheless, the court below did not further examine whether there are specific circumstances to deem it clear that the re-appellant cannot obtain trust of all inheritors because of the above circumstances alone, and the court below erred in the misapprehension of the legal principles as to dismiss.

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 Lee Sang-hoon (Presiding Justice)