[2] Whether a claim for recovery of the property of the heir against the deceased heir under the former customary law ceases to exist by prescription (negative)

[2] According to the former customary law, the heir's right to claim the distribution of the inheritance to the deceased heir does not exist as to the time of the exercise of the right to claim the distribution of the inheritance. Therefore, the right to claim the distribution of the inheritance to the deceased heir cannot be seen as extinguished

2. The costs of lawsuit shall be borne by the defendant.

The following facts may be acknowledged in full view of Gap evidence 1, 16, 29, Gap evidence 2-1 through 3, Gap evidence 5 through 30-1, 2-2, witness 1 and 2's testimony, and the whole purport of the pleading, and there is no counter-proof.

A. The Defendant died on June 16, 1946 from the deceased Nonparty’s son, Plaintiff 1, and 2, respectively. The Defendant died on the part of the deceased Nonparty.

B. Each real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") was owned by the deceased non-party. The defendant completed the registration of ownership preservation or the registration of ownership transfer under his name between December 7, 1970 and April 7, 1981 after the deceased non-party died (in the case of the real estate indicated in the separate sheet, the registration of ownership transfer is completed in the name of the non-party’s family on August 27, 1998 after the plaintiffs completed the registration of provisional disposition for prohibition of disposal that became the creditor on September 24, 1998).

C. Meanwhile, on April 13, 1970, Plaintiff 1 and Plaintiff 2 married on April 16, 1971, respectively, and the statutory portion was set by law.

2. Determination on the cause of the claim

A. The current Civil Code was enforced on January 1, 1960 and Article 25(1) of the Addenda of the Civil Code also applies to the inheritance commenced before the enforcement of the Civil Code even after the enforcement date of the Civil Code. Under the former common law, where the head of a family dies, the deceased heir (referring to the person who succeeds to the status of the deceased as the deceased as the deceased in the protocol, and the head of the South or North Korean heir will be the deceased in the case of common law, and the deceased will succeed to the status of the deceased in the family at the same time as the deceased in the case of the deceased in the case of the deceased in the case of the deceased in the first place), and the deceased in the first place will succeed to the property (However, there is no inheritance right for women), and where there are two or more persons, the deceased in the first place, and the property heir who is the deceased in the case of the deceased in the second place, shall be entitled to the remainder of inherited property in principle, and if there are two or more persons who succeed to the remainder of the deceased in the first place of inheritance of Australia, the deceased in the deceased.

B. In this case, since the above deceased on June 16, 1946, before the enforcement of the current Civil Code, the deceased non-party was deceased, pursuant to the former common law, the defendant will succeed to the property of the deceased, the family head's heir, the defendant and the plaintiffs who are their proposal (including the plaintiff). At the same time, the defendant is obligated to independently succeed to the whole of the deceased's estate and distribute the remainder, excluding his own share of inheritance, to the above deceased's son and Samnam, and the plaintiffs have the right to demand a distribution of the inherited property according to their shares of inheritance. The plaintiffs have the right to demand a distribution of the inherited property against the defendant. As seen earlier, the plaintiff 1 and the plaintiff 2 on April 13, 1971 were legally divided by marriage. Thus, the copy of the complaint of this case, including the plaintiffs' intent to demand re-determination, was delivered to the defendant on November 12, 1998, barring any special circumstances, to the defendant's ownership transfer registration x 12/14/12/1914 (12/1).14).14).

C. The defendant asserts that, as the head of the above deceased's family heir, the above real estate was not inherited in accordance with the former common law, it was proved by testamentary gift made up of the deceased's own writing, and the claim for subdivision can only be recognized in the case of inheritance of property, and in the case of testamentary gift, the plaintiffs cannot have the claim for subdivision against the defendant.

According to the statements in the evidence Nos. 1 and 2 and witness 2 of Australia, the above deceased non-party was prepared on June 13, 1946, before his death. Among these statements, it can be recognized that the whole movable property belongs to the defendant who is South-North Korea. However, it is difficult to view the above fact alone that the deceased non-party bequeathed bequeathed the entire movable property to the defendant and excluded the plaintiffs' right to inheritance. Further, there is no evidence to deem that the above deceased non-party bequeathed the entire movable property to the defendant. Rather, considering the above evidence and witness 1's testimony, the defendant's assertion that the above deceased non-party et al.'s inheritance did not receive the education of his mother (the witness 2), and that the above deceased non-party et al.'s inheritance was no more than that of the above deceased non-party et al.'s inheritance, and that the plaintiff et al. et al.'s remaining property should be separated from the above non-party's inheritance customs to the above non-party et al.

3. Judgment on the defendant's defense

A. The Defendant asserts that the claim for subdivision is an obligatory right recognized under the former customary law, and the statute of limitations has expired unless it is exercised for ten years from the date on which it can be exercised. The Plaintiffs, at least on June 16, 1946 when the deceased Nonparty died, or at least on April 13, 1970 when the Plaintiffs were married, did not exercise the claim for subdivision for ten years after April 16, 1971, respectively, and therefore, the Plaintiffs had already extinguished the statute of limitations even if they had the claim for subdivision.

In light of the above, the claim for subdivision is recognized under the former common law, and in its nature, the inheritance commenced before the enforcement of the Civil Code pursuant to Article 25 (1) of the Addenda to the Civil Code shall be applied even after the enforcement date of the Civil Code, and according to the former common law, the provisions of the former common law shall be applied to the inheritance commenced before the enforcement date of the Civil Code. Thus, according to the former common law, "the heir's claim for subdivision of the inheritance to the deceased heir shall not be determined by the expiration date of the customary law as to the time of the enforcement of the claim (see, e.g., Supreme Court Decision 535, Oct. 20, 1917; Supreme Court Decision 535, Nov. 20, 1917; Supreme Court Decision 230, Jan. 5, 1917; Supreme Court Administration Decision 29, Nov. 29, 2005; Supreme Court Decision 532, old Customs on Inheritance).

B. Next, the defendant, including the time of marriage between the plaintiffs and about 30 years ago, had already been able to support the plaintiffs, so that the plaintiffs cannot file a claim again. However, there is no evidence to acknowledge that the defendant had been able to provide property support to the plaintiffs. Rather, in light of the whole purport of the pleadings in the testimony of Gap Nos. 2-1, 32, 34, and witness 1 and 2 on May 4, 1966, the defendant was married on May 4, 1966, and 6,7 years after his mother was living together with the above witness 2, who was living together with the above witness 0,00 0,000 0,000 0,0000 won and 0,000 won and 0,000 won and 0,00 won and 0,00 won and 0,00 won and 0,000 won and 10,000 won and 10,000 won and 0.

4. Conclusion

Therefore, the defendant is obligated to implement each procedure for the registration of transfer of ownership on November 12, 1998 with respect to 1/4 of the shares of each of the real estate in this case to the plaintiffs. Therefore, the plaintiffs' claims are with merit, and it is so decided as per Disposition with the assent of all.

Judges Jeong-hee (Presiding Judge) and Lee Hun-hee Kim