Plaintiff (Attorney O Byung-il, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Sejong, Attorneys Gyeong-tae et al., Counsel for the defendant-appellant)

May 28, 2009

1. All of the plaintiff's claims are dismissed.

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

(main purport of claim)

1. Defendant 1 shall pay to the Plaintiff 876,420,266 won with 5% interest per annum from November 21, 2007 to the date of this decision, and 20% interest per annum from the next day to the date of full payment.

2. The Defendants will implement the procedure for registration of cancellation of ownership transfer registration completed under No. 20732 of receipt of June 8, 1998 with respect to each of 2/6 shares in the real estate listed in the separate sheet to the Plaintiff.

(1) Preliminary claims

1. Defendant 1 shall pay to the Plaintiff 876,420,266 won with 5% interest per annum from November 21, 2007 to the date of this decision, and 20% interest per annum from the next day to the date of full payment.

2. The Plaintiff, among the real estate listed in the separate sheet, Defendant 1, with respect to shares of 1/12, Defendant 2, with respect to shares of 2/12, shall implement the procedure for the registration of ownership transfer based on the return of each legal reserve of inheritance.

(2) Claim for a preliminary claim

1. Defendant 1 shall pay to the Plaintiff 565,948,36 won with 5% interest per annum from November 21, 2007 to the date of this decision, and 20% interest per annum from the next day to the date of full payment.

2. The Plaintiff, among the real estate listed in the separate sheet, Defendant 1, with respect to shares of 1/12, Defendant 2, with respect to shares of 2/12, shall implement the procedure for the registration of ownership transfer based on the return of each legal reserve of inheritance.

1. Basic facts

A. The non-party 1 (the death of November 20, 2007) is a child of the plaintiff, non-party 2, and defendant 1, and the defendant 2 is the wife of defendant 1.

B. With respect to the real estate listed in the separate sheet that was owned by Nonparty 1 (hereinafter “instant land”), the registration of ownership transfer as stated in Paragraph 2 of the Defendants’ primary purport of the claim in the name of the Defendants on June 8, 1998 (hereinafter “instant registration of ownership transfer”) has been made with respect to each one/2 shares of each of them.

[Ground of recognition] Facts without dispute, entry of Gap evidence 4, purport of whole pleadings

2. Judgment on the Plaintiff’s claim for attention

A. During the period from July 8, 1998 to February 18, 2006, the Plaintiff: (a) released KRW 1,314,630,414 in the Japanese bank, corporate bank, single bank, new bank, and passbook of the foreign exchange bank in the name of Nonparty 1 without permission; (b) Defendant 1 is jointly inherited Nonparty 1’s damage claim and, at the same time, is jointly inherited Nonparty 1’s damage claim and at the same time, Defendant 2 is liable to pay the Plaintiff, who acquired the inheritance share of the above right to claim damages, KRW 876,420,266, and delay damages therefrom.

In addition, the Plaintiff asserts that, since the Defendants completed the registration of transfer of ownership without Nonparty 1’s consent, the Defendants are co-inheritors of Nonparty 1 and the Plaintiff who acquired the inheritance shares from Nonparty 2, each of 2/6 shares in the instant land [=1/6 shares in the Plaintiff’s inheritance = 1/6 shares in the Plaintiff’s inheritance x 1/3) + 1/6 shares in the inheritance of Nonparty 2’s inheritance + 1/6 shares in the Plaintiff’s inheritance (i.e., 1/2 shares transferred to the Defendants x 1/3)].

B. As alleged by the plaintiff, the defendant 1 withdraws the deposit from the passbook in the non-party 1's non-party 1 without permission. On the other hand, as to whether the defendants completed the registration of ownership transfer of this case without the non-party 1's consent, the statement in Gap evidence 3-1 through 5, Gap evidence 5-24, Gap evidence 26-1, Gap evidence 26-2, and 40-1, 26-3, witness non-party 3, 4, and 8's testimony are difficult to believe it, or it is insufficient to recognize the plaintiff's above assertion. Since there is no other evidence to acknowledge it, the plaintiff's above assertion is without any reason without considering the remaining points (the plaintiff's above assertion is without merit (the whole statement in Eul evidence, Eul evidence 3, 4, Eul evidence 22, Eul evidence 28, testimony and the purport of the whole testimony and pleading of the non-party 5, it can be acknowledged that the ownership transfer registration of this case was made under the legitimate gift contract concluded between the non-party 1 and the defendants.

3. Judgment on the plaintiff's conjunctive claim

A. The plaintiff is the first preliminary claim, and the above withdrawal was made without the consent of the non-party 1, and the registration of transfer of ownership of this case was made based on the lawful donation contract between the non-party 1 and the defendants. The plaintiff claimed the same amount as the main claim regarding the withdrawal of deposit. As to the land of this case, the plaintiff claimed the return of the legal reserve (the plaintiff's legal reserve of inheritance and the legal reserve of inheritance of the non-party 2 acquired from the non-party 2).

In addition, the plaintiff asserts that as the second preliminary claim, both the above deposit withdrawal and the ownership transfer registration were made with the consent of the non-party 1, and that the above withdrawal was made with the consent of the defendant 1, the plaintiff sought the return of the withdrawn deposit and the land of this case (the plaintiff's legal reserve of inheritance and the non-party 2's legal reserve of inheritance acquired from the non-party 2).

B. Of the Plaintiff’s assertion on the first preliminary claim, as to whether Defendant 1 had withdrawn the deposit without permission from the passbook in the name of Nonparty 1, there is no evidence to acknowledge this as seen earlier, and this part of the allegation is without merit.

C. Next, we examine the part of the Plaintiff’s claim on the first preliminary claim and the second preliminary claim, regarding the pertinent land’s claim on legal reserve of inheritance.

(1) On December 16, 2008, the Plaintiff expressed his intent to exercise the Defendants’ right to claim restitution of legal reserve of inheritance in accordance with the preparatory document as of December 16, 2008, and the fact that the above preparatory document was delivered to the Defendants on December 19, 2008 is apparent in the record.

(2) As to this, the Defendants asserted that the Plaintiff’s right to claim the return of the above legal reserve has expired by prescription.

Article 1117 of the Civil Act provides that the right to claim the recovery of a legal reserve of inheritance expires unless the person entitled to the legal reserve of inheritance becomes aware of the fact that the gift or testamentary gift was to be returned within one year from the time when the person entitled to the legal reserve of inheritance became aware of the fact that the gift or testamentary gift was to be returned. Thus, the term "when the person having the right to the legal reserve of inheritance becomes aware of the fact that the gift was to be returned" should be interpreted as "when the person having the right to the legal reserve of inheritance becomes aware of the fact that the gift was null and void and that the gift was to be returned immediately after the fact that the person having the right to the legal reserve of inheritance became aware of the fact that the gift was to be returned. Therefore, in light of the purport of special short-term extinctive prescription as to the right to claim the recovery of legal reserve of inheritance, the statute of limitations does not run even if the person having the right to the legal reserve of inheritance of inheritance of the deceased, and if the person having the right to the legal reserve of inheritance of inheritance of inheritance of 2604.

In light of the above facts, Gap evidence Nos. 11, 27, 28, Eul evidence Nos. 30, 31, Eul evidence Nos. 34, and Eul evidence Nos. 39, testimony and overall pleadings of the plaintiff Nos. 6 and 7, the non-party No. 1 told the plaintiff that he donated the land of this case to the defendant after the lapse of the period of 1999. ② The defendants newly constructed the building of this case on June 1, 2003, the above construction was conducted on behalf of the plaintiff Nos. 1 and the above construction was conducted on behalf of the plaintiff Nos. 1 and 200. Meanwhile, the defendant Nos. 1 and 1 and 21 were purchased on the land adjacent to the land of this case, and the plaintiff's right to claim the return of non-party No. 1 to the non-party No. 2 without any specific legal reserve of inheritance was invalid.

(3) The plaintiff again indicated in the plaintiff's complaint of this case that the case name was "claim for Return of Inherited Property, etc." and that the plaintiff's claim was also included in the preparatory document of this case as of December 16, 2008 that the plaintiff's claim right was exercised on August 26, 2008 and August 27, 2008, when the copy of the complaint of this case was delivered to the defendants.

However, the plaintiff's assertion based on the premise that the registration of transfer of ownership of this case is null and void cannot be deemed to include the purport of exercising the right to claim the return of legal reserve on the premise that the registration of transfer of ownership of this case is valid. Therefore, the plaintiff's above assertion

D. Furthermore, among the plaintiff's assertion as to the second preliminary claim, as to whether the deposit withdrawn from the passbook in the name of the non-party 1 was donated to the defendant 1 as alleged by the plaintiff, it is not sufficient to acknowledge the above only with the entries of Gap evidence 3-1 through 5, and Gap evidence 17, and there is no other evidence to acknowledge this. Thus, the plaintiff's assertion as to this part of the claim is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judge Final (Presiding Judge)

Note 1) The “permanent cancer registry” written by the Plaintiff in the purport of the claim appears to be a clerical error.

Note 2) According to the Plaintiff’s computation method, the above amount is KRW 876,420,276 [=the Plaintiff’s inheritance shares of KRW 438,210,138 + (i.e., KRW 1,314,630,414 x 1/3) + Nonparty 2’s inheritance shares of KRW 438,210,138 + (i.e., KRW 1,314,630,414 x 1/3). However, the above amount is determined as requested by the Plaintiff.