[2] Whether Article 1114 of the Civil Act applies to a joint heir who has made a special benefit from the decedent (negative)

[3] In a case where the co-inheritors's actual inherited property is calculated on the premise that the shortage of legal reserve of inheritance falls short, whether the share of excess beneficiary's inheritance due to the birth donation among co-inheritors should be considered (negative)

[2] The interpretation of Article 1008 of the Civil Code, which applies mutatis mutandis pursuant to Article 1118 of the Civil Code, is that the donation was made one year prior to the commencement of inheritance, and it was made one year prior to the commencement of inheritance with the knowledge that it would inflict damage on the right holder of the legal reserve, and the claim for return is accepted within the scope exceeding the legal reserve of the special beneficiary.

[3] In calculating the actual inherited property of a joint heir, which is a premise for seeking for a shortage of legal reserve of inheritance, where there is an excess beneficiary due to a pre-paid donation among co-inheritors, such special beneficiary is deemed not an heir, and the share of inheritance is reasonable to calculate the specific share of inheritance solely based on the statutory share of inheritance of a joint heir without considering the share

A. 5% per annum from January 28, 1997 to June 30, 1999, and 25% per annum from the next day to the day of full payment, respectively, to Plaintiffs 1, 91,071,428 won, and to Plaintiffs 2, and 3, respectively, respectively; and

나. 별지 제1, 2, 3 목록 기재 부동산의 각 ½ 지분 가운데,

With respect to the share of 1,739,381/656,234,230 to Plaintiff 1, with respect to the share of 1,159,587/656,234,230 shares, respectively,

The procedure for the registration of transfer of ownership, which is the cause of the return of each legal reserve, shall be conducted.

2. The plaintiffs' remaining claims against Defendant 1 and the claims against Defendant 2 are all dismissed.

3. Of the litigation costs, 60% are jointly and severally borne by the plaintiffs, and 40% are jointly borne by the defendants 1.

4. The above paragraph 1(a) may be provisionally executed.

A. On September 3, 1948, the deceased Nonparty married with Plaintiff 1 and formed Plaintiff 2 and 3 as his child. On March 5, 1953, Defendant 1 and Nonparty were married with Defendant 2.

B. The deceased Nonparty died on May 16, 1996.

[Evidence: Evidence No. 1 and 3, and Evidence No. 6-2]

(1) The plaintiffs asserted that although the deceased non-party and the defendant 2 were stated as married to the family register, they are not married and they are not married and therefore they should be excluded from the subject of inheritance of this case. However, the plaintiffs asserted that the defendant 2 should not be excluded from the subject of inheritance of this case. However, the plaintiffs' assertion that the above assertion is insufficient to acknowledge, and there is no other evidence, is not accepted).

2. Determination on the claim for indemnity

(a) The occurrence of claims for indemnity;

(1) At the time of the deceased Nonparty’s death, there were apartments listed in the attached Table 4 with the inherited property.

(2) On November 15, 1995, the deceased non-party set up a collateral on the above apartment on the part of Defendant 1.

(3) On October 4, 1996, Defendant 1’s failure to repay its obligations, according to the decision of commencement of auction by the Dong Branch of the Seoul District Court (No. 21946, around 96) and the auction procedure was initiated for the above apartment. On December 23, 1996, the price was awarded in KRW 425,00,000,000, and the price was fully paid in full, and all others were distributed to others.

[Evidence: Statement No. 4-6 of Evidence A and Results of Inquiries into Facts about the East Branch of the Seoul District Court)

B. Determination

(1) The plaintiffs succeeded to the status of the deceased non-party's guarantor on the real property based on the grounds of inheritance. Thus, the plaintiffs acquired the right to indemnity against the defendant 1 who was the debtor of the above collateral security on January 28, 1997, transferred the above apartment ownership to a third party in full with the successful bid price.

Meanwhile, in a case where the ownership of the real estate offered as security is lost by an auction due to the exercise of a security right, the scope of the claim to be claimed against the debtor by the owner of the real estate is equivalent to the market price at the time the decision of permission of the auction becomes final and conclusive, barring special circumstances, and the amount equivalent to the market price of the real estate constitutes the successful bid price, barring special circumstances.

(2) Accordingly, the Plaintiffs have the following claims for reimbursement against Defendant 1 in proportion to their respective shares of inheritance. (Inasmuch as the status of inheritor is not affected even if they are married spouse, Defendant 2, the spouse of the parties, and Plaintiff 2, the spouse of the non-party, respectively, are 3/14, and Defendant 2, the spouse of the non-party, and the non-party are 2/14, respectively)

Plaintiff 1: 425,00,000 ¡¿ 3/14 = 91,071,428 won (hereinafter referred to as “cost below”)

Plaintiff 2: 425,00,000 ¡¿ 2/14 = 60,714,285 won

Plaintiff 3: 425,00,000 x 2/14 = 60,714,285 won

3. Judgment on the claim for the return of legal reserve of inheritance

A. Violation of the plaintiffs' legal reserve of inheritance

(1) Property that forms the basis for calculating legal reserve of inheritance

① 망 소외인은 1987. 12. 2. 피고 1에게 별지 제1, 2, 3 목록 기재 부동산 중 각 ½ 지분을 증여하여 같은 달 4일 소유권 이전 등기를 마쳐 주었다. (원고들은 그 나머지 각 ½ 지분도 증여된 것이라고 주장하지만 그 증거가 없다.)

② On May 16, 1996, the market price of the deceased Nonparty at the time of his death is as follows.

Attached List 1 Real Estate (93.2/100 Shares): 1,152,294,00 won

Attached List 2: 139,717,660 won

별지 제3 목록 부동산(1½6.5 지분) :20,456,800원

③ At the time of the commencement of inheritance, there was an apartment as shown in the attached list No. 4 with the inherited property, and the market price at the time of May 16, 1996 was KRW 480,000,000.

[Evidence: Each entry of Gap evidence 4-3 and 5, and the result of appraisal of the market price of appraiser white ground]

④ On the other hand, the interpretation of Article 1008 of the Civil Act, which applies mutatis mutandis pursuant to Article 1118 of the Civil Act, is that the donation was made one year prior to the commencement of inheritance, and that the donation was made one year prior to the commencement of inheritance, with the knowledge that the damage to the right holder of the legal reserve was inflicted, the joint heir’s claim for return is accepted within the scope exceeding the legal reserve of the special beneficiary.

Therefore, the value of the property, which is the basis for calculating the legal reserve of this case,

피고 1이 생전에 증여받은 재산 가액 합계 656,234,230원 (1,152,294,000×½ + 139,717,660×½ + 20,456,800×½)과 상속 개시 당시 재산인 위 아파트 480,000,000원을 합한 1,136,234,230원이다.

(2) Calculation of the value of the plaintiffs' legal reserve of inheritance

원고들의 유류분은 유류분 산정의 기초가 되는 재산 가액에 원고들의 유류분 비율을 곱한 것으로 이는 각자 상속분의 ½에 해당한다.

따라서, 각자의 유류분을 돈으로 환산하면, 원고 1은 121,739,381원(= 1,136,234,230×3/14×½), 원고 2와 3은 각 81,159,587원(= 1,136,234,230×2/14×½)이다.

(3) The plaintiffs' actual inherited property

In calculating the real inherited property of the co-inheritors, which is a premise for seeking a shortage of legal reserve of inheritance, if there is an excess beneficiary due to the birth donation among co-inheritors, such special beneficiary shall be deemed not an heir, and it is reasonable to calculate the specific share of inheritance only with the statutory share of inheritance of the co-inheritors, without considering the share of inheritance.

Therefore, Defendant 1’s portion of inheritance obviously calculated that he obtained special benefits in excess of his own share of inheritance does not take into account the calculation of the actual inheritance property of the co-inheritors to seek for shortage of legal reserve of inheritance. As such, the division of inheritance for calculating the Plaintiffs’ actual inheritance property is “12” and accordingly, the actual inheritance amount is calculated as follows.

Plaintiff 1: 480,000,000 ¡¿ 3/12 = 120,000,000 won

Plaintiff 2, 3: 480,000,000 x 2/12 = 80,000,000 won

(4) Violation of legal reserve of inheritance = Na - Paragraph (3)

From the value of each of the above legal reserve of inheritance, there is a shortage of legal reserve of inheritance deducting the value of property at the time of inheritance commencement, so Plaintiff 1 was infringed upon due to each of the above donations against Defendant 1 by the deceased Nonparty (i.e., KRW 121,739,381-120,000), Plaintiff 2, and Plaintiff 3, respectively (i.e., KRW 1,159,587-80,000).

B. Scope of property to be returned by Defendant 1

(1) Since the claim for return of legal reserve of inheritance, which caused the infringement of legal reserve of inheritance, has a real right effect as the right to form a right, the donation of property included in the property that is the basis of calculating legal reserve of inheritance according to the exercise of the right to return shall be naturally invalidated to the extent that it infringes on legal reserve of inheritance and the right of the

(2) Therefore, Defendant 1 is obligated to return the property donated to the Plaintiffs as part of the violation of the legal reserve of inheritance with respect to the property donated to the Plaintiffs, and when calculating the shares of each of the above real estate, it is as follows.

① As to Plaintiff 1,

1,739,381/656,234,230 with respect to each immovable (amount of violation of legal reserve of inheritance/amount increased by Defendant 1)

② As to Plaintiff 2 and 3:

1,159,587/656,234,230 regarding each of the above immovables (the amount of violation of legal reserve of inheritance / the amount increased by Defendant 1)

4. Determination on the claim for damages caused by an unlawful act

A. The Plaintiff asserts that this part of the claim is a factual basis, and if the deceased non-party was aware of his spouse, the Defendant 2 would make a false double family register and act as if he were the deceased non-party’s spouse, thereby causing mental damage to the Plaintiff 1.

B. However, there is no evidence to prove that Defendant 2 knew, or was negligent in, the deceased Nonparty’s spouse at the time of marriage with the deceased Nonparty. Therefore, this part of the Plaintiff’s claim is without merit without further review as to the remainder of the claim.

5. Conclusion

그렇다면, 피고 1은, 원고 1에게 91,071,428원, 원고 2, 3에게 각 60,714,285원과 위 각 돈에 대하여 1997. 1. 28.부터 이 사건 1999. 6. 29.자 청구 취지 및 청구 원인 병경 신청서 송달일임이 기록상 명백한 1999. 6. 30.까지 연 5%, 그 다음날부터 다 갚는 날까지 소송촉진등에관한법률이 정한 연 25%로 각 셈한 돈을 지급하고, 별지 제1, 2, 3 목록 기재 부동산의 각 ½ 지분 가운데, 원고 1에게 1,739,381/656,234,230 지분에 관하여, 원고 2, 3에게 각 1,159,587/656,234,230 지분에 관하여, 각 유류분 반환을 원인 삼은 소유권 이전 등기 절차를 이행할 의무가 있으므로, 원고들의 이 사건 청구는 위 인정 범위에서 이유 있어 인용하고, 피고 1에 대한 나머지 청구와 피고 2에 대한 청구는 모두 이유 없어 기각하기로 하여, 주문과 같이 판결한다.

Judges Lee Sung-sung(Presiding Judge)