A. Whether a prior order in family inheritance or a prior order in property inheritance or an abortion of a fetus in the same order constitutes a reason for disqualification for inheritance under Article 992 subparag. 1 and Article 1004 subparag. 1 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 190) (affirmative)

B. Whether the above “a” requires “a perception that the inheritance is favorable to the inheritance” other than “the intention to kill” as the grounds for disqualification for inheritance (negative)

A. In a case where the fetus is in the order of family inheritance or in the same order of property inheritance, if the fetus was born, it constitutes a reason for disqualification for inheritance under Article 992 subparag. 1 and Article 1004 subparag. 1 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 190).

B. Regarding (1) Articles 92 subparag. 1 and 104 subparag. 1 of the above Act provide that the person who intentionally murders the person prescribed by the above provisions shall be disqualified and shall not be recognized as favorable to inheritance. (2) The above Act includes “the person who has prior priority to inheritance of the decedent or head of family (Article 992 subparag. 1)” and “the person who has prior priority to or priority in the inheritance of the decedent or head of family (Article 1004 subparag. 1),” and “the person who has prior priority to or priority in the inheritance of the decedent or property” (Article 1004 subparag. 1) include “the person who has prior priority to the inheritance of the decedent or the person who has been in the same priority in the inheritance,” and the above “the person who has been disqualified” includes “the person who has no prior priority to the inheritance of the decedent,” and the reason why the act constitutes the disqualified person is stipulated as “the person who has no prior interest in inheritance,” and it does not require “the lineal ascendant’s awareness” other than the grounds for inheritance.

Article 92 Subparag. 1 and Article 1004 Subparag. 1 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 190)

Plaintiff 1 et al., Counsel for the plaintiff-appellant

Samhee Korea Shipping Corporation

Gwangju High Court Decision 90Na6889, 6896 delivered on November 29, 1991

Of the part of the lower judgment against the Plaintiffs, the part of KRW 5,397,181 is reversed, and that part of the case is remanded to the Gwangju High Court. The remaining appeals by the Plaintiffs are all dismissed.

The costs of appeal dismissed shall be assessed against the plaintiffs.

1. As to the grounds of appeal Nos. 1 and 4

Since the comparative negligence ratio and consolation money calculated by the court below are recognized as proper, all of the arguments are without merit.

2. Regarding ground of appeal No. 2

A. According to the reasoning of the judgment below, the court below acknowledged the fact that the deceased non-party died as a tort on August 16, 1989 by the defendant, and since the co-Plaintiff 1 of the court of first instance is the deceased's wife and his parents, the damage claim against the defendant of the non-party deceased was inherited according to his statutory share of inheritance, and the plaintiffs succeeded 2/4 of the above joint plaintiff 1 of the judgment of the court of first instance and 1/4 of the plaintiffs. The above co-inheritors 1 of the judgment of the court of first instance is disqualified for inheritance, and the above non-party 1 of the non-party deceased's own consciousness constitutes a non-party deceased's own consciousness, but the central significance of the non-party 1 of the inheritance system can not be seen as a civil sanction against the above non-party 1's destruction of the order of acquisition of property or the above non-party 1's death. Thus, the court below rejected the above non-party 1's co-inheritors's death and the above non-party 18's death.

B. First of all, the part of the judgment of the court below that if the fetus is in the priority or the same order of family inheritance or property inheritance, if the fetus was born at the time of this case, the part that constitutes the ground for disqualification for inheritance under Articles 92 subparag. 1 and 104 subparag. 1 of the Civil Act (amended by Act No. 4199 of Jan. 13, 190; hereinafter the same shall apply) which was enforced at the time of this case is correct.

However, we examine whether the above provisions of the Civil Act is a ground for disqualification for inheritance, as determined by the court below other than "the intention to kill" and "the perception that it is favorable to inheritance" as determined by the court below. (1) Article 992 subparagraph 1 and Article 1004 subparagraph 1 of the Civil Act provide that "the person who intentionally murders the person prescribed by the provisions shall be disqualified for inheritance," and do not provide that "the perception that it is favorable to inheritance" should be more. Thus, the judgment of the court below is contrary to the name of the above provisions, and (2) Article 92 subparagraph 1 of the Civil Act and Article 104 subparagraph 1 of the same Act include "the person who has prior to or higher than the deceased or the head of family (Article 992 subparagraph 1 of the same Act)" (Article 1004 subparagraph 1 of the same Act and Article 1004 subparagraph 1 of the same Act require "the lineal ascendant's death" to be "the deceased's death" and Article 100 (2) of the Civil Act does not require "the deceased's death.

C. Therefore, the court below's dissenting opinion determined that "the perception that the inheritance is favorable to the inheritance" other than "the intention to kill" as the grounds for disqualification under Article 992 subparagraph 1 of the Civil Code and Article 1004 subparagraph 1 of the Civil Code, and recognized the joint plaintiff 1 of the court of first instance as the non-party deceased's family head's heir and property heir, and there is an error of law by misunderstanding the legal principles as to the grounds for disqualification for inheritance under the above provisions, which affected the conclusion

D. However, since the judgment of the court of first instance ordering the payment of damages amounting to KRW 28,467,929 out of KRW 39,262,292, which the court below acknowledged as belonging to the joint plaintiff 1 of the first instance court as a result of inheritance, has already become final and conclusive, the plaintiffs are entitled to seek the return against the joint plaintiff 1 of the first instance court, and no longer can it be claimed against the defendant.

3. Accordingly, the part of the judgment of the court below against the plaintiffs is reversed and remanded to the court below for a new trial and determination on this part of the case. The remaining appeals are dismissed and the costs of appeal are assessed against the plaintiffs who lost. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Kim Sang-won (Presiding Justice)