[2] Where a third party acquires the right of mortgage, etc. as to the subject matter after donation or testamentary gift, whether the person entitled to legal reserve of inheritance can seek the return of the subject matter in lieu of the return of the subject matter (affirmative in principle)

1. Korean Civil Act recognizes the legal reserve of inheritance and provides for the method of return of legal reserve of inheritance, but does not provide for the method of return of legal reserve of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of inheritance of

Meanwhile, in cases where a third party acquires a mortgage, superficies, etc. on the subject matter after donation or testamentary gift, a person entitled to legal reserve of inheritance may seek a return of the subject matter against the person obliged to return the subject matter, instead of returning the subject matter, unless there are exceptional circumstances, such as that the person liable to return the subject matter may recover and transfer it to a state where there is no limitation on the mortgage, etc. because it is impossible or substantially difficult to return the subject matter. However, the person holding the right to legal reserve of inheritance does not allow the person having the right to legal reserve of inheritance to seek a return of the subject matter when he/she takes risk or disadvantage. Thus, even

Furthermore, the fact that real estate and money are mixed in the object of the return of legal reserve of inheritance, or that there are many shares of real estate to be returned to the person with the right to legal reserve of inheritance does not interfere with the order to return the original property.

2. Nevertheless, in this case, where the plaintiffs, who are entitled to legal reserve of inheritance, sought the return of the original properties with respect to each of the instant real estate, the court below, unlike the aforementioned legal principles, mixed real estate and money with the objects of return of legal reserve of inheritance, and did not have a large share of each of the instant real estate to be returned to the plaintiffs, and ordered the return of the value solely on the ground that the mortgage was established after the defendants' evidence was issued. The judgment below erred by misapprehending the legal principles on the method of return of legal reserve of inheritance, which affected the conclusion of judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)