Of the principal part of the judgment of the court below, the part on the return on the rent of H building and the counterclaim against the plaintiff (Counterclaim defendant).

The grounds of appeal are examined.

1. Fruits from inherited property after the commencement of inheritance until the completion of the division of inherited property (hereinafter “liability of inherited property”) have not existed at the time of the commencement of inheritance.

In a judgment on the division of inherited property, without considering the negligence of such inherited property, where a specific inherited property among inherited property subject to division is owned by one of the inheritors, and the specific inherited property and the value of such specific inherited property are divided into cash (so-called "division method"), the inheritor who is divided into the specific inherited property shall be deemed to have owned it retroactively from the time of the commencement of the inheritance pursuant to the main sentence of Article 1015 of the Civil Act, but the negligence of the inherited property shall not be deemed to have been retroactively owned by the inheritor.

In such a case, barring any special circumstance, it is reasonable to view that co-inheritors acquire the inherited property at the ratio of “specific share of inheritance” calculated at the time of commencing the inheritance by taking account of the increased property and the contributory portion, etc.

2. Nevertheless, on the erroneous premise that co-inheritors have the right to acquire inherited property according to their statutory shares in inheritance, the lower court rejected the principal claim related to the rent income or unjust enrichment equivalent to the rent income from H building accrued from the commencement of inheritance without examining the specific shares in inheritance between the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff), and partly accepted the counterclaim claim.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the attribution of inherited property, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

On the other hand, the plaintiff is dissatisfied with the part against the plaintiff among the main lawsuit of the judgment below.