[1] In a case where the gift or the property subject to legacy was transferred to another person upon the exercise of the right to claim a return of legal reserve of inheritance, whether the transferee may demand the return of the property (affirmative with qualification)

[2] The method of exercising the right to claim the return of legal reserve of inheritance under Article 1117 of the Civil Code

[1] Article 1115 of the Civil Act / [2] Articles 1115 and 1117 of the Civil Act

[1] Supreme Court Decision 200Da8878 delivered on April 26, 2002 (Gong2002Sang, 1220) / [2] Supreme Court Decision 93Da11715 delivered on June 30, 1995 (Gong195Ha, 2533)

Plaintiff 1 and one other

Defendant 1 and 2 others (Law Firm Barun, Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na34084 decided September 5, 2013

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 1115(1) of the Civil Act provides, “When there is a shortage in the legal reserve of inheritance due to gifts or testamentary gifts provided by Article 1114 of the inheritee, a person with the right to legal reserve of inheritance may claim the return of the shortage in the legal reserve of inheritance to the extent that the shortage occurs.” Thus, where a gift which is to be returned by exercise of the right to claim the return of legal reserve of inheritance or the property which is the object of testamentary gift is transferred to another person, if the transferee becomes aware that it would prejudice the person with the right to legal reserve of inheritance at the time of transfer, the transferee may also claim the return of the property (see Supreme Court Decision 20

According to the reasoning of the judgment below, in full view of the relationship between donee and transferee, the ratio of the property donated by the Defendants to the deceased’s property, and the age of the deceased, it is reasonable to view that Defendant 3 was aware that he would harm the Plaintiffs, who were entitled to legal reserve of inheritance, at the time of receiving the gift from Defendant 2, at the time of receiving the gift from Defendant 2.

In light of the above legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no error in the misapprehension of legal principles as to the legal nature of the right to claim the return of forced portion or there is no need

2. Regarding ground of appeal No. 2

A. Article 1117 of the Civil Act provides that the right to claim the return of legal reserve of inheritance shall expire by prescription if it is not exercised within one year from the time when the person having the right to claim the return of legal reserve of inheritance becomes aware of the gift to be returned to the commencement of inheritance or the testamentary gift. In this context, the right to claim the return of legal reserve of inheritance can be exercised by means of a declaration of intention to the other party in court or outside court. In this case, if the person having the right to claim the return of legal reserve of inheritance is designated as testamentary gift or gift whose intention to claim the return is infringed, it would be sufficient to specify the subject matter, and it does not need to specify the subject matter in detail, unlike exercising the right to claim the transfer registration of the object arising therefrom, or the right to claim the transfer of

According to the reasoning of the judgment below and the records, around August 8, 1983, the deceased non-party (hereinafter "the deceased") donated the land to Defendant 1 at Suwon-si ( Address 1 omitted), ( Address 2 omitted), ( Address 3 omitted), ( Address 4 omitted), and ( Address 4 omitted) on the land above ( Address 1 omitted) on April 30, 1985, ( Address 5 omitted), ( Address 6 omitted), from the land above ( Address 2 omitted), ( Address 7 omitted), from the above ( Address 3 omitted), and ( Address 4 omitted from the above ( Address 4 omitted); (3) the land listed in the [Attachment 3] list No. 3 of the judgment of the court below on September 4, 1987, ( Address 5 omitted); (6), (7) the neighboring land of the deceased; and (4) the plaintiffs filed a claim for the return of the deceased's inheritance against the Defendants' previous land and 40).

Examining the above facts in light of the legal principles as seen earlier, even if the plaintiffs did not specify the above ( Address 5 omitted), ( Address 6 omitted), part of the land ( Address 7 omitted), and the land (hereinafter “part of the land indicated in No. 1”) listed in No. 3 List 4 of the lower judgment prior to annexation among the land listed in No. 3 List 1 of the lower judgment in a prior lawsuit, while exercising the right to claim the return of the legal reserve of inheritance, and the land listed in No. 3 List 4 of the lower judgment (hereinafter “land listed in No. 4”) as the donated property, insofar as the plaintiffs did not specify the land as the donated property, which was infringed upon the legal reserve of inheritance, and expressed their intent to claim the return, the legal reserve of inheritance of some of the land listed in No. 1 and No. 4 as the object

Therefore, the lower court’s determination that rejected Defendant 1’s defense of extinctive prescription regarding part of the land indicated in No. 1 and No. 4 was inappropriate, but is justifiable in its conclusion, contrary to what is alleged in the grounds of appeal, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds of the legal doctrine

B. Meanwhile, based on the reasoning of the judgment of the court of first instance, it is insufficient to confirm that the Plaintiffs, at the time of the prior suit, knew the fact that the land other than the land set forth in the aforementioned No. 1 and No. 4 was donated to Defendant 1, among each land set forth in the separate list of the judgment below at the time of the prior suit, and otherwise there is no evidence to prove that the Plaintiffs were aware of the fact of donation of each land at the time of the prior suit, and thus, it is justifiable to reject the Defendants’ defense of extinctive prescription. In so doing, contrary to what is alleged in the grounds of appeal, the lower

3. Conclusion

All appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)