[근저당권말소][집52(2)민,3;공2004.8.15.(208),1306]
[1] Whether a new agreement on division of inherited property can be concluded again after the termination of the agreement on division of inherited property in whole or in part (affirmative)
[2] Whether the proviso of Article 548(1) of the Civil Act applies to cases where an agreement on division of inherited property is rescinded (affirmative)
[1] The agreement on division of inherited property is a kind of contract between co-inheritors, and the co-inheritors may cancel all or part of the agreement on division of inherited property already made by all co-inheritors, and then make a new agreement on division.
[2] A real right, which has been changed due to the execution of the agreement upon the termination of the agreement, naturally, is returned to the original condition where the agreement on division of inherited property was not reached. However, in accordance with the proviso of Article 548(1) of the Civil Code, the right of a third party who has acquired a complete right by registration, delivery, etc. shall not be prejudiced, on the basis of the legal effect arising from the agreement on division before the cancellation of the agreement.
[1] Articles 548(1), 1013, and 1015 of the Civil Act / [2] Article 548(1) of the Civil Act
Plaintiff 1 and three others (Law Firm Pacific, Attorneys Jae Jae-hwan et al., Counsel for the plaintiff-appellant)
Housing Guarantee Co., Ltd. (Attorneys Cho Jae-ap et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2000Na23930 delivered on November 12, 2002
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The agreement on the division of inherited property is a kind of contract between co-inheritors. The co-inheritors may cancel all or part of the agreement on the division of inherited property already made by all the agreement, and then make a new agreement on the division again. The real right which was changed due to the execution of the agreement on the division of inherited property when the agreement on the division of inherited property is terminated is naturally returned to the original state in which there was no agreement on the division. However, in accordance with the proviso of Article 548(1) of the Civil Act, if the agreement on the division of inherited property is cancelled, they shall have a new interest based on the legal effect arising from the agreement on the division before the cancellation, and shall not prejudice the rights of
The court below, based on its adopted evidence, held that the land of this case was originally owned by Nonparty 1. The non-party 1 died on October 13, 1995. On January 30, 1996, the non-party 2, South Korea, had completed the establishment registration of a mortgage to the defendant in the name of the deceased non-party 1 in order to secure the obligation to repay loans to the defendant of the non-party 1, without the consent of the plaintiffs who are the remaining co-inheritors. After the non-party 2 and the plaintiffs agreed on the division of the property of this case on January 19, 199, on the ground that the non-party 2 agreed on the separate inheritance of the land of this case on January 21, 199, the non-party 2 was not entitled to the first agreement on the division of the property of this case, and the new agreement on the division of this case was not legally implemented within the new period of time after the commencement of the establishment registration of the non-party 1 in the name of this case.
Therefore, the court below's rejection of the plaintiffs' claim for cancellation of the right to collateral security of this case is not somewhat improper in its reasoning, but is just in its conclusion, and it cannot be said that it affected the conclusion by the misapprehension of legal principles alleged in the grounds of appeal.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Cho Cho-Un (Presiding Justice)