[2] The legal nature of the claim for payment of value under Article 1014 of the Civil Code

[3] The standard time and method of calculating the "value equivalent to the portion of inheritance" as stipulated in Article 1014 of the Civil Code

[4] Whether the negligence of inherited property is subject to division of inherited property (negative with qualification)

[5] Whether a person who became a co-inheritors after the division of inherited property, or upon the confirmation of a judgment, may claim for the return of the negligence incurred from the inherited property already divided to another co-inheritors by unjust enrichment (negative)

[2] The claim for payment of equivalent value to the inherited portion under Article 1014 of the Civil Act is a kind of claim for recovery of inheritance.

[3] The right to claim payment of value under Article 1014 of the Civil Act is originally converted to the right to inherited property that an addressee acquired retroactively from the time of commencement of the inheritance, and is premised on a provisional relationship with a kind of goods, etc. equivalent thereto. Thus, such value shall not be calculated based on the price actually acquired by other co-inheritors by division or other disposal or on the actual market price at the time of such division or other disposal, but on the basis of the time of actual payment. In a case of a claim for payment by lawsuit, it shall be calculated based on the value of inherited property at the time of conclusion of the lawsuit. In this case, the conclusion cannot be different due to the circumstances that other co-inheritors divided it by the method of disposal of inherited property, or that the value at the time of payment at fact-finding or the time of closing of argument at fact-finding is significantly higher than that at the time of division. Accordingly, the Civil Act provisions on the scope of return of unjust enrichment cannot be applied to the scope of value. Whether other co-inheritors own the inherited property after division, the market value at that time of division or other co-inheritors acquired the inherited property at the time of disposal.

[4] Since inherited property, which is the object of division of inherited property, is limited to the property owned by the predecessor at the time of commencement of inheritance, the negligence of inherited property, such as dividend of inherited shares, rent of inherited property, interest of deposits, etc. arising after the commencement of inheritance, is the public property acquired by the inheritor according to the inherited property, not the inherited property itself, and therefore, the co-inheritors do not object to the division of inherited property in principle unless there are special circumstances, such as there is no objection to resolve the dispute including the negligence of inherited property, and there is no expectation that the dispute can be resolved efficiently, and the co-inheritors shall receive the portion corresponding to their inherited property through a civil claim, such as the return of

[5] Even if there is a person who becomes a co-inheritors after the division of the inherited property, other co-inheritors who already divided shall be entitled to acquire the ownership of the inherited property in a conclusive manner, and shall be entitled to acquire the negligence generated from the inherited property, and the negligence acquired by the co-inheritors shall not be acquired without any legal ground. Thus, unless there is a separate provision allowing the recovery of the inherited property after the division for the negligence of the inherited property, the person subject to the division after the division shall not claim a return of the negligence of the inherited property with unjust enrichment.

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

Defendant 1 shall pay the amount of KRW 37,390,159 won and the amount of KRW 1,372,756 among them from February 28, 1995 to February 31, 1996 to KRW 4,948,625 won, from March 4, 1997 to KRW 2,239,318, from March 4, 1997 to KRW 21,928,208, from April 1, 1998 to KRW 468,367, from March 11, 200 to KRW 5,457,455, from March 16, 201 to KRW 725,932 to KRW 425,932, from March 1, 195 to June 24, 209 to KRW 50,000 per annum.

Defendant 2 shall pay 1,890,024,804 won and 220,321,238 won among them, from February 28, 1995; 245,946,44 won from January 31, 1996; 548,286,060 won to February 11, 1996; 359,40,700 won from March 4, 1997; 352,180,285 won from March 1, 1998; 35,170,749 won from March 11, 200 through 87,65,40,000 won to 35,00 won from March 15, 205 to 3196,50 to 319,50 won, respectively; and 31,530,000 won from March 16, 2995;

Defendant 3 shall pay 1,132,435,743 won and 63,842,680 won among them from February 28, 1995; 230,145,45,451 won from January 31, 1996; 104,143,857 won from March 4, 1997; 102,065,836 won from April 1, 1998; 21,782,294 won from March 11, 200; 25,374,648 won from March 16, 201 to 30% from March 16, 200; 30% from 194,6,66,2960 won to 30% from March 31, 195; 201 to 30% from 20% from 30% from 194,297.4

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1-1, 2, and 2-1, 2, 3, and 3-1 through 4.

A. Nonparty 1 did not file a marriage report with Nonparty 2 on June 10, 1959, and produced Nonparty 3 on April 2, 1962.

B. On September 3, 1963, Nonparty 2 reported a marriage with Nonparty 1, and reported the birth of Nonparty 3 and the Plaintiff (hereinafter referred to as “Plaintiff, etc.”) as the natural father himself and Nonparty 1, respectively, and registered Nonparty 2 and the Plaintiff, etc. as their wife and person on the family register of Nonparty 1.

C. After that, the mother of Nonparty 1 was sentenced to the Seoul Family Court to confirm that the above marriage between Nonparty 2 and Nonparty 1 is null and void by filing a petition for adjudication on nullity of marriage with Nonparty 2 and Nonparty 1 with the Seoul Family Court. Although Nonparty 2 appealed on July 15, 1965, the appeal was dismissed on July 15, 1965, and the judgment on nullity of marriage became final and conclusive by withdrawing the appeal, and the plaintiff et al. became a person other than marriage.

D. On June 1, 1967, after the judgment on nullity of marriage became final and conclusive, Nonparty 1 completed the marriage report with Defendant 1, and produced Defendant 2 on March 18, 1968, and Defendant 3 on June 26, 1970.

E. Meanwhile, even after the adjudication on nullity of marriage becomes final and conclusive, Nonparty 1 filed an adjudication on nullity of affiliation against the plaintiff et al. who is still registered on his own family register, and on September 6, 1968, the adjudication was rendered on the confirmation that the recognition of Nonparty 1 et al. as the plaintiff et al. was null and void on September 3, 1963 and confirmed on September 21, 1968. Accordingly, the plaintiff et al. was removed from the family register of Nonparty 1 at that time.

F. Nonparty 1 died on November 30, 1994.

G. On January 4, 1995, the plaintiff et al. filed a suit of acknowledgement against the prosecutor, Seoul Family Court 95D461, and the decision was rendered on December 5, 1996 that the plaintiff et al. is the deceased non-party 1's natural father. The plaintiff et al. appealed against the plaintiff et al. on November 6, 1998, but the appeal was dismissed on November 6, 1998, while the plaintiff et al. appealed against the plaintiff et al. on the part of Seoul High Court 97Ra89. The plaintiff et al. appealed against the plaintiff et al. on October 8, 1999, but the appeal was dismissed on the same day.

2. The parties' assertion

As the above recognition judgment became final and conclusive, the Plaintiff established legal parental relation with the deceased non-party 1 retroactively at the time of birth, and is in the position of co-inheritors with the Defendants at the time of the deceased non-party 1’s death. Before the above recognition judgment becomes final and conclusive, the Defendants divided the shares of the deceased non-party 1’s inherited property into the shares of the deceased non-party 1, the private hotel, the private house building, and the company leasing the same building site, and acquired the amount equivalent to the shares dividends and the rent of the real estate. The Defendants asserted that the part corresponding to the Plaintiff’s shares of the shares acquired by the Defendants and the rent constitutes the profits earned without any legal cause and sought

As to this, the Defendants asserted that the shares and real estate divided to a specific co-inheritors before recognition or a judgment becomes final and conclusive, and the dividend and rent accrued therefrom are ultimately vested in the co-inheritors, so they do not constitute unjust enrichment.

3. Determination

(a) Points in dispute;

The key issue of the instant case is whether a person who became a co-inheritors by acknowledgement after the commencement of inheritance or by the confirmation of a judgment, can claim for the return of a considerable portion of the inherited property to the unjust enrichment on the part of the co-inheritors, who acquired shares or real estate as a division of inherited property before recognition or the confirmation of judgment, or on the part of other co-inheritors who acquired shares or real estate as a division of inherited property before the judgment becomes final.

B. Restrictions on the retroactive effect of recognition and the purport of Article 1014 of the Civil Act

A person who becomes a co-inheritors after the commencement of inheritance or after the judgment becomes final and conclusive, may naturally participate in the division with other co-inheritors, if the inherited property has not yet been divided or disposed of. However, there is a problem regarding the retroactive effect of recognition after the division or other disposal of inherited property has already been effected. If the retroactive effect of recognition is fully recognized, the division of inherited property or the claim for recovery of inheritance is allowed to the person who is recognized as a party, which would be unreasonable because it would lead to complicated legal issues and threaten transaction safety. On the contrary, if the retroactive effect of recognition is completely limited, it would result in entirely making the right of inheritance according to the person who is recognized as a party, which would not be effective.

In this context, Article 860 of the Civil Code provides that "a recognition shall take effect retroactively to the time of the birth of the child. However, the right acquired by a third party shall not be prejudiced." Article 1014 of the Civil Code provides that "If a person who becomes a co-inheritors by acknowledgement after the commencement of inheritance or by the confirmation of the judgment, files a claim for the division of the inherited property, the other co-inheritors shall have the right to claim payment of the equivalent value to the inherited property if the co-inheritors already divided or disposed of the inherited property," and aims for conciliation by a method that recognizes a claim for payment by value only after the division.

The above provision does not deny the validity of the division or other disposal of the inherited property in cases where another co-inheritors have already divided or disposed of the inherited property (other than the cases where the co-inheritors have disposed of another third party, the same applies to cases where only the division has been made among the co-inheritors) prior to such recognition, by allowing them to file a claim for payment of the equivalent value of the inherited property to the inherited property, thereby recognizing a right in lieu of a new division of inherited property, thereby rationally adjusting the interests and existing legal relations of the persons to be recognized.

In other words, Article 1014 of the Civil Code has the meaning as a special provision of the proviso of Article 860 on the limitation of retroactive effect of recognition (except provision).

C. Nature and method of calculating the value of a claim for payment of value under Article 1014 of the Civil Act

The claim for payment of equivalent value to the inherited portion under Article 1014 of the Civil Act is a kind of claim for recovery of inheritance (Supreme Court Decision 79Da2052 Decided February 10, 1981, Supreme Court Decision 93Da12 Decided August 24, 1993, etc.), Article 2(2) of the Family Litigation Act, and Article 2(1)2 of the Rules of Family Litigation.

The right to claim the payment of value is originally converted to the right to inherited property (the share of inheritance) that the person to whom it was acquired retroactively from the time of commencement of the inheritance, and is based on a provisional relation with the same kind of goods, etc. equivalent thereto. As such, the value of other co-inheritors shall be calculated based not on the price actually acquired by division or other disposal or on the market price at the time of the actual payment, but rather on the basis of the actual payment. In the case of a claim for payment through a lawsuit, the value of inherited property at the time of conclusion of the fact-finding proceedings in the lawsuit shall be calculated on the basis of the value of inherited property at the time of the conclusion of the fact-finding proceedings. In this case, the conclusion may not be different due to the fact that other co-inheritors divided the inherited property by the method of disposal of inherited property, or that the value at the time of actual payment or the time of the closing of argument at the fact-finding proceedings significantly higher than that at the time of such division (see, e.g., Supreme Court Decisions 93Da12

Therefore, the provisions of the Civil Act on the scope of return of unjust enrichment cannot be applied mutatis mutandis to the scope of the value of the inherited property, regardless of whether other co-inheritors possess the inherited property after division, whether there is a disposal amount or market price at that time, whether there is profit, whether there is a continuous acquisition of the inherited property or whether there is no fault by disposing of the inherited property, whether there is a continuing acquisition of the inherited property in the future, whether other co-inheritors continuously acquire the negligence of the inherited property in the future, and whether other co-inheritors knew of the existence of the person to be recognized at the time of division or other disposal, the value equivalent to the inherited property of the person to be determined after division, out of the value assessed by assumption of the state in which the inherited property has not been divided at the

(d) Ownership of the fruits of inherited property;

Since inherited property subject to division of inherited property is limited to the property owned by the decedent at the time of the commencement of inheritance, the negligence of inherited property, such as dividend of inherited shares, rent of inherited property, and interest of deposits, etc., arising after the commencement of inheritance, is the public property acquired by the inheritor according to the inherited property, not the inherited property itself. Therefore, barring any special circumstance such as there is no objection to resolve a dispute including the negligence of inherited property, and there is no objection in reality, and it is expected that the dispute can be resolved efficiently, as a matter of principle, it is not subject to division of inherited property. Co-inheritors should receive the portion corresponding to their share of inherited property through a civil claim such as the

However, such a legal doctrine applies to cases where a co-inheritors divide an inherited property in a state where the inherited property has not yet been divided or disposed of among the co-inheritors. Accordingly, the above legal doctrine cannot apply to a person who becomes a co-inheritors after another co-inheritors has already divided the inherited property or disposed of it, or after having become final and conclusive judgment. This is because the proviso of Article 860 of the Civil Act that limits the retroactive effect of recognition is applied to cases where the inherited property has already been divided or disposed of, and the right of co-inheritors already acquired shall not be prejudiced by the rights of co-inheritors. However, under Article 1014 of the Civil Act, only the right to claim payment of value is recognized (the above right to claim payment of value is not subject to the negligence of inherited property as a new right instead of the inherited property, regardless of the negligence of inherited property). Accordingly, even if there is a person who becomes a co-inheritors by the final and conclusive judgment after the division of inherited property, other co-inheritors who already divided ownership of inherited property becomes final and conclusive, and thus becomes a cause of acquisition without the negligence.

Ultimately, inasmuch as there is no separate provision allowing the recovery of inherited property to the addressee after division as to the negligence of inherited property, the beneficiary after division may not claim for the return of the inherited property with unjust enrichment. As such, even if the beneficiary cannot claim for the return of the amount equivalent to the negligence of inherited property to the beneficiary after division, the purport of Article 1014 of the Civil Act is evaluated as at the time of actual payment of the inherited property itself (the time of closing argument in the court of fact-finding) and it is intended to reasonably adjust the benefits of the beneficiary and the existing legal relationship after division in light of the fact that the purport of Article 1014 of the Civil Act is evaluated as at the time of actual payment

E. Public opinion - problem where inherited property is a stock

However, in the case that inherited property is a stock, unlike real estate, there is a growing room for shareholders to adjust the value of the shares, so if other co-inheritors have assessed the value of inherited property on the basis of the principle of justice and fairness as a result of a decrease in the value of the company's assets and shares by excessively distributing the company's profits to their shareholders after the final and conclusive judgment of recognition was filed, and then another co-inheritors have reduced the value of the company's assets and shares.

However, in such special circumstances as above, insofar as the portion excessively distributed in excess of normal dividends is deemed to substantially constitute disposal of the divided inherited property, and the method of calculating the value of inherited property including this part, and the method of calculating the value of inherited property at the time of claiming the payment of value, not at the time of actual payment (the time of closing argument in the trial of fact-finding), as long as the normal dividend of stocks is not a subject matter of stock (subject matter), the amount equivalent to the dividend cannot be claimed for unjust enrichment as seen earlier.

(f) articles of incorporation;

A person who becomes a co-inheritors by acknowledgement after the commencement of inheritance or by the confirmation of a final judgment, pursuant to the provisions of limitation on the retroactive effect of recognition, may not claim for the return of the inherited property itself and its negligence against other co-inheritors who acquired stocks or real estate as a division of inherited property before recognition or judgment becomes final and conclusive, with unjust enrichment: Provided, That pursuant to Article 1014 of the Civil Act, only a claim for the payment of the value equivalent to the inherited property to

4. Conclusion

If so, the plaintiff's claim of this case is without merit, and it is all dismissed. It is so decided as per Disposition.

Judges Aboard (Presiding Judge) The date of use of Lee Jong-soo