[2] Whether the property and the inherited debt donated to the inheritor before the death of the inheritee are subject to division of inherited property (negative)

[3] Purport of the provision of Article 1008 of the Civil Code as to the share of inheritance of the special beneficiary, and the standard for determining whether the donation before birth constitutes a special benefit

[2] The property donated to the inheritor prior to the death of the inheritee is an element of consideration in calculating a specific share of inheritance as a so-called special benefit, but is not an object of division of inherited property, and it cannot be deemed that the inheritance obligation is an object of division of inherited property under the Civil Code, and even if it is divided, it cannot be asserted against the obligee as the content of division.

[3] The purpose of Article 1008 of the Civil Code concerning the share of the special beneficiary is to ensure the substantial equity among co-inheritors by treating the inherited property as the advance payment of the share of inherited property and recognizing only the portion which is deducted therefrom as the statutory share of inherited property as the final share of inherited property of the special beneficiary. As such, what kind of biological donation constitutes a special benefit shall be determined by taking into account the property of the inheritee’s living, income, living standard, home conditions, etc. of the inheritee, and by taking into account the equity among co-inheritors, whether the donation may be deemed as a prior giving part of his share of inherited property to the person to be the primary heir, in consideration

2.The claimant shall pay to the other party KRW 1,004,362,687 and at the same time divide one-half of the buildings listed in paragraph 2 of the Schedule of Schedule I as owned by the claimant and the respective deposit claims listed in paragraph 3 of the Schedule shall be divided as owned by the other party.

3. Three-fourths of the trial costs shall be borne by the claimant, and the remainder by the other party.

2. The land listed in paragraph (1) of the attached Table 1, 1/2 shares among the buildings listed in paragraph (2) of the attached Table 1, each deposit claim listed in paragraph (3) of the attached Table 1, and each deposit claim listed in paragraph (2) of the attached Table 2 shall be owned by the claimant, and each deposit claim and insurance claim listed in paragraph (1) of the attached Table 2 shall be divided into ownership of the other party.

A. On May 23, 1940, the decedent completed a marriage report with non-party 2 on May 23, 1940, and maintained the marital life, but did not bring up his child among them. On February 12, 1963, the decedent, who was non-party 2, who was a natural father, was brought up until the other party becomes adult.

B. On April 10, 1974, when the deceased non-party 2 worked as a railroad public official for more than 40 years, and died on April 10, 1974, the deceased reported the adoption of the deceased non-party 2 and the deceased as the deceased non-party 2 and the deceased.

C. On May 2, 1991, the decedent acquired the land listed in attached Table 1 List No. 1 (hereinafter “former land”) and the building listed in attached Table No. 2 List No. 1 (hereinafter “former store”) around May 1976, with the sale price of the housing located in Yongsan-gu Seoul, Yongsan-gu, Seoul, which was inherited by non-party 2, as well as the retirement allowance, etc. of the deceased non-party 2, and the building listed in attached Table No. 2 List No. 1 (hereinafter “former store”). On April 190, the decedent newly constructed the building listed in attached Table 1 List No. 2 (hereinafter “former three-dong building”) on the land of the previous third-dong building with the help of the petitioner who was working at the design specialized company at the time, and completed the registration of the preservation of ownership in the name of the decedent and the claimant.

D. The decedent formed a lot of property with monthly rent revenue earned at the previous store and building of the previous building, and around July 1998, donated the new store to the other party, and deposited or subscribed each deposit and insurance listed in Section 2 of the attached Table 2 in the name of the claimant and his family members, and each deposit and insurance listed in Section 3 of the attached Table 2 in the name of the other party and his family members.

E. Meanwhile, around January 2004, the claimant obtained a loan of 60,000,000 won from the National Bank of Korea as collateral for the land of YY and YA and used it for personal purposes.

F. On July 22, 2004, the decedent, together with the claimant’s family members, died on July 22, 2004. At the time of death, the decedent deposited each of the deposits listed in Section 3 of Attached Table 1 in his/her own name.

G. Meanwhile, the value of 1/2 shares among the dynamics and dynamics were 2,039,958,240 won at the time of the decedent’s death, and now 2,285,371,200 won at the time of the decedent’s death, and the value at the time of the decedent’s death at the new ward store was 200,000,000 won.

[Grounds for Recognition: Evidence Nos. 1 through 6, Evidence No. 10, Evidence No. 12, Evidence No. 12, Evidence No. 2, Evidence No. 1 and 2 (including each number), the witness 1's testimony, the result of the market price appraisal of each category of appraiser's room, the purport of the whole examination]

2. Determination on the claim for determination of the contributory portion

The claimant asserts that all of the deposit claims in attached Form 1(3) should be recognized as his/her contributory portion, since he/she received the benefit from November 1, 1975 to the death of the decedent, supported the decedent by raising living expenses, supported the building construction expenses and maintenance expenses of the building in the Gyeongdong, and also contributed to the maintenance or increase of the decedent's property by bearing the other party's educational expenses and marriage expenses. As such, the claimant asserts that all of the deposit claims in attached Table 1(3) should be recognized as his/her contributory portion.

On the other hand, the contributory portion system prescribed by Article 1008-2 of the Civil Act intends to promote the substantial equity among co-inheritors by considering the contributory portion in the calculation of the contributory portion in a case where the co-inheritors specially supported the inheritee or specially contributed to the maintenance or increase of the inheritee’s property. Therefore, in order to recognize the contributory portion in this case, it should be recognized that the claimant specially supported the inheritee or specially contributed to the maintenance or increase of the inheritee’s inherited property, as long as it is necessary to adjust the contributory portion for the sake of equity with the other co-inheritors.

However, as shown in the above facts, Gap evidence 20 and Eul evidence 35 and witness 2's testimony cannot be trusted in light of Gap evidence 11, Eul evidence 17, 18, 19, and evidence Nos. 21 through 31 as well as witness 1's testimony. It is not sufficient to acknowledge the above assertion, and there is no other evidence to acknowledge it. However, it is recognized that the claimant has supported the inheritee at the time of the construction of the previous building, but the claimant is deemed to have acquired 1/2 shares among the previous building. Since the claimant has already disbursed some expenses for the maintenance and repair of the previous building and has resided in the previous building with the claimant of the previous building, it is reasonable to view that the claimant's claim for a contributory portion is a co-owner of the previous building to maintain his property as a co-owner of the previous building, and it is not reasonable to deem that the claimant's claim for a contributory portion had already been contrary to the purport of the system of equity and equity among co-inheritorss.

3. Determination on the claim for division of inherited property

(a) The confirmation of the inheritor and statutory inheritance shares;

According to the above facts of recognition, the claimant and the other party jointly inherited the property of the deceased as a child of the deceased, even though they were not the natural father of the deceased, and the other party has also formed a adoptive parent relationship by fostering the deceased's child as the natural father and the other party to report the birth as the natural father of the deceased. Thus, the claimant and the other party jointly inherited the property of the deceased as a child of the deceased. The statutory share of 1/2

(b) Determination of property to be divided;

According to the above facts, each of the deposit claims listed in attached Form 1(3) that were owned by the decedent at the time of the death of the decedent and the 1/2 shares among the dynamics, and the remaining under the name of the decedent, constitutes the property subject to division of this case.

In addition, the claimant is also seeking division of each property listed in the separate sheet No. 2 and the obligation to refund the deposit money for the reverse building. However, among each of the above property, the active property is donated to the claimant and the other party prior to the death of the decedent and such property is merely an element of consideration in calculating the specific share of inheritance with special profits, and it cannot be deemed an object of the division of inherited property. In addition, the inheritance obligation cannot be viewed as an object of the division of inherited property with the original Civil Code, and even if it is divided, it cannot be asserted against the creditor with the content of the division. Therefore, the claim for division of each of the above property is without merit.

(c) the determination of specific shares of inheritance;

(1) Special proceeds

(A) According to the above facts, it is reasonable to deem that the claimant received each deposit claim, 60,000,000, and 60,000,000, each of the deposit claims and insurance claims as stated in the separate sheet No. 2 List No. 2 List No. 2 List No. 2, from the decedent as collateral, from the purchaser, each of the deposit claims and insurance claims as stated in the separate sheet No. 2 List No. 3, and that the other party received each of the deposit claims and insurance claims from the new store and the new store

(B) As to this, the claimant asserts that from October 1998, the other party's gratuitous use of the second floor store among the previous building and that the amount of KRW 40,000,000 lent by the predecessor to the other party's husband assistance building should be considered as the special benefits of the other party. On the other hand, the other party asserts that the other party's 1/2 share in the claimant's name among the previous building and the profits that the claimant has resided without compensation on the fourth floor of the previous building should also be considered as the special benefits of the claimant.

However, the purpose of Article 1008 of the Civil Act, which provides that statutory inheritance may be adjusted by special benefits, is to ensure the substantial equity among co-inheritors by treating the gift property as the pre-paid share of inheritance and recognizing only the portion which remains after the statutory share of inheritance as the final share of inheritance of the special beneficiary. As such, what constitutes special benefits is determined by the determination of whether the donation of pre-paid inheritance may be deemed to be a pre-paid portion of the inherited property to be returned to the prospective heir, by taking account of the property of the inheritee, income, living standard, home conditions, etc. of the inheritee, and by taking account of the equity among co-inheritors, it can be deemed that the donation of pre-paid inheritance is a pre-paid portion

In light of the above, the profits earned by the claimant and the other party using part of each calendar building free of charge seems to be similar to what is the profits used by both parties first of all, and it is difficult to view the part of the share of the claimant and the other party out of the inherited property as having been paid in advance when considering the debtor's assets or revenues, and even if the above lending can be acknowledged, it is recognized that the lending claim, which is inherited property, has occurred, and it does not constitute a special profit, and it is reasonable to view the 1/2 shares of the calendar building acquired by the claimant as the proprietary property of the claimant acquired in return for contribution to the construction of the calendar building as seen earlier. Therefore, each of the above arguments by the claimant and the other party are without merit.

(2) Calculation of specific shares of inheritance

(a)property deemed inherited;

Total value of 2,549,995,830 won = Total value of 2,039,95,240 won of the other party's special profits at the time of commencement of the inheritance + Total of 26,037,590 won of the deposit claims listed in paragraph (3) of the attached Table 1 + Total of 130,000,000 of the claimant's special profits + Total of 70,000,000 of the deposit claims listed in paragraph (2) of the attached Table 2 + KRW 60,00,000 of the deposit claims listed in paragraph (2) of the attached Table 2 + Total of 354,00,000,000 of the other party's special profits (=total of 20,000,000 stores at the new-dong store and 1/2 of the buildings + Total of 15,00 won of the deposit claims listed in paragraph (3) of the attached Table 2)

(B) Statutory amount of inheritance

Claimant and Other Party: 1,274,997,915 won each (=2,549,995,830 won deemed inherited property x statutory inheritance shares 1/2)

(C) Specific shares of inheritance

(1) Claimant: 1,144,97,915 won (=legal share in inheritance 1,274,97,915 - Total of 130,000,000 won)

② Other party: 920,97,915 won (=legal share in inheritance 1,274,997,915 – Total of 354,00,000 special profits of the other party)

(d) Final shares of inheritance

2,311,408,790 won in aggregate as of the present value of the property subject to subdivision (=2,285,371,200 won in aggregate as of the present value of the 1/2 shares among the dynamic land and 1/2 shares among the dynamic buildings + Total amount of each deposit claim listed in paragraph (3) of the attached Table 1 List 26,037,590 won in aggregate)

① Claimant: 1,281,008,512 won (i.e., the above 2,311,408,790 won x 2,065,95,830 won in total and specific shares of inheritance of the claimant x 1,144,97,915 won in total and specific shares of inheritance of the claimant / 2,065,995,830 won in total and below won

② Other party: 1,030,400,277 won (i.e., the above 2,311,408,790 won x the specific share of inheritance of the other party 920,97,915 won/specific share of inheritance of the other party 2,065,95,830 won)

(3) Method of division

In full view of all the circumstances revealed in the examination of this case, including the fact that the claimant owns 1/2 shares among the 1/2 shares in the dynamic building and is residing in the dynamic building, and both the claimant and the other party are seeking to acquire the 1/2 shares in the dynamic land and the dynamic building, which are inherited property, and to divide it in the way of paying the settlement amount corresponding to the shares in the inheritance to the other party, it is reasonable to require the claimant to pay the remaining settlement amount of KRW 1,004,362,687, which is the aggregate of each deposit claim belonging to the other party in the 1,030,40,40,277 of the attached Table 1 list, instead of dividing it as owned by the other party, each deposit claim in paragraph (3) of the attached Table 1 list, which is owned by the other party to the above final share of 26,037,590 won, which is the remaining settlement amount of KRW 1,004,362,687.

4. Conclusion

Therefore, the claimant's claim for determination of the contributory portion is dismissed as it is without merit, and it is so decided as per Disposition as to the inherited property division claim.

[Attachment] List omitted. Finally.]

Judges Kim Hong-woo (Presiding Judge)