Plaintiff (Attorney Kim Jong-ro, Counsel for the plaintiff-appellant)

Defendant 1 and three others (Attorney Cho Jae-woo, Counsel for the defendant-appellant)

January 25, 2011

Seoul Central District Court Decision 2010Gahap33076 Decided September 16, 2010

1. All of the plaintiff's claims that are changed in exchange at the trial are dismissed.

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

The judgment of the first instance court is revoked, and the agreement on the division of inherited property made by the Defendants and Nonparty 1 on December 4, 2009 is revoked. The Defendants shall implement the procedure for the cancellation of registration of the transfer of co-ownership on each 3/52 share of the deceased Nonparty 2's co-ownership from among the real estate listed in the attached Form for the inheritance due to the division of the above agreement on January 28, 2010 as to each 3/13/52 share of the Seoul Central District Court received by the Sungbukbuk Registry (the Plaintiff claimed damages for tort, etc., but the Plaintiff exchangeded the lawsuit in the first instance to seek the cancellation of fraudulent act).

1. Basic facts

A. On October 23, 2007, the Plaintiff filed a lawsuit claiming the agreed amount against Nonparty 1, the Seoul Central District Court 2007Gahap76615, and was sentenced by the above court on October 23, 2007, that “ Nonparty 1 shall pay to the Plaintiff 280 million won and the amount equivalent to 5% per annum from February 5, 1998 to September 13, 2007, and 20% per annum from September 14, 2007 to the day of full payment.” The above judgment became final and conclusive at that time.

B. Meanwhile, after Nonparty 1 and his mother, the deceased Nonparty 2 (hereinafter “the deceased”) died on December 4, 2009, on January 28, 2010, with respect to the shares owned by the deceased (3/13; hereinafter “instant inherited property”) on the attached property indicated in the deceased’s inherited property, the registration of transfer of ownership based on the inheritance due to a merger on December 4, 2009, other than Nonparty 1, was completed in the name of the Defendants. On January 28, 2010, Nonparty 1, the above date of the registration of transfer of ownership, reported the renunciation of inheritance to the deceased on March 15, 2010, and the said report was accepted on March 15, 2010.

[Reasons for Recognition] Facts without dispute, Gap 1, Gap 2-1, Eul 2, Eul 1, the purport of the whole pleadings

2. The assertion and judgment

A. The assertion

On December 4, 2009, Nonparty 1 and the Defendants, co-inheritors, who had already been in excess of the debt, agreed on the division of inherited property between the Defendants, on the part of the instant inherited property, to waive their rights to their inherited portion among the inherited property. Therefore, the agreement on division of inherited property should be revoked as it constitutes a fraudulent act detrimental to the Plaintiff, a creditor, and the Defendants are obliged to perform the procedure for cancellation of registration of cancellation of each share ownership transfer registration.

B. Determination

In full view of the facts acknowledged earlier and the purport of the entire argument in the testimony of the non-party 1 of the first instance trial, the non-party 1 of the deceased's co-inheritors reported the renunciation of inheritance on January 28, 2010, within the period of renunciation of inheritance. The Defendants, the remaining co-inheritors, upon acceptance of the above renunciation of inheritance, thought that the non-party 1 does not constitute the deceased's inheritor from the beginning due to the retroactive effect of the renunciation of inheritance. On the same day, the Defendants agreed to divide the inherited property of this case with the content of dividing the inherited property according to their statutory shares of inheritance, and completed the registration of transfer of ownership of this case. The above renunciation of inheritance was duly accepted, and there is no counter-proof otherwise.

In light of the relevant legal principles, namely, the renunciation of inheritance is an act of rejecting or changing the effect of naturally reverted to an heir, which would retroactively extinguish the effect of inheritance at the time of commencement of inheritance. If an inheritor renounces inheritance due to the retroactive effect of the renunciation of inheritance (Article 1042 of the Civil Act), it would have never been an inheritor from the beginning (Article 1042 of the Civil Act). If an inheritor renounces inheritance due to the retroactive effect of the renunciation of inheritance, the inheritance shall belong to the proportion of the other inheritor’s share of inheritance. If an inheritor renounces inheritance, the inheritance shall belong to the heir at the time of other heir’s share of inheritance. In light of the fact that only the Defendants except Nonparty 1, including Nonparty 1’s share of the inheritance equivalent to the legal share of the inheritance of this case, including the inheritance of this case, completed the registration of ownership transfer from the beginning by Nonparty 1 to the effect that Nonparty 1 was not an inheritor. Furthermore, as alleged by the Plaintiff, it is difficult to deem that Nonparty 1 and the Defendants agreed on revocation of inheritance as a legal act between inheritance and the heir.

Therefore, the plaintiff's above assertion is without merit without any need to examine one mother.

3. Conclusion

Therefore, all of the plaintiff's claims of this case are dismissed in exchange at the trial. It is so decided as per Disposition.

[Attachment]

Judge Lee Gyeong-sck (Presiding Judge)