In a case where there is a person among co-inheritors who specially supported an inheritee or contributed to the maintenance or increase of the inheritee’s property by living together, nursing, etc. for a considerable period of time, whether he/she may claim the contributory portion in a lawsuit claiming the return of legal reserve of inheritance / Whether he/she may claim the contributory portion in a lawsuit claiming the return of legal reserve of inheritance

In light of the provisions of Articles 1008-2, 1112, 1113(1) and 1118 of the Civil Act, the entitlement to a contributory portion has the nature as a premise for the division of inherited property. As such, the entitlement to a contributory portion has no relationship with the limitation on the freedom of disposal of an inheritee’s property in order to guarantee a given portion of the inheritor’s share of inherited property. Therefore, even if a co-inheritors specifically supported an inheritee for a considerable period of time by living together, nursing, or any other means, or contributed to the maintenance or increase of an inheritee’s property, the entitlement to a contributory portion cannot be asserted in a lawsuit claiming the entitlement to a contributory portion in a lawsuit claiming the return of the entitlement to a contributory portion, as long as the entitlement to a contributory portion has not been determined by an agreement among co-inheritors or by a family court’s adjudication, even if the entitlement to a contributory portion was determined by a co-inheritors

Articles 1008-2, 1112, 1113(1), and 1118 of the Civil Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and three others

Defendant

Incheon District Court Decision 2012Na12795 Decided June 27, 2013

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the defense of entitlement to a contributory portion

A. Article 108-2(1) of the Civil Act provides, “If there is a person among co-inheritors who specially supported an inheritee for a considerable period of time by living together, nursing, or by any other means, or specially contributed to the maintenance or increase of the inheritee’s property, the amount calculated by deducting the contributory portion determined by an agreement among co-inheritors from the value of the inheritee’s property at the time of the commencement of the inheritance shall be considered as inherited property, and shall be the amount calculated by adding the contributory portion to the inherited portion calculated by Articles 1009 and 1010.” Paragraph (2) provides, “If the agreement under paragraph (1) is not reached or it is impossible to reach an agreement, the Family Court shall determine the contributory portion upon the request of the contributor under paragraph (1), taking into account the time, method and degree of contribution, the amount of inherited property, and other circumstances.” Paragraph (3) provides, “The contributory portion shall not exceed the amount calculated by deducting the value of legacy from the value of property of the inheritee at the time of the commencement of inheritance.” Paragraph (4) provides that claim for division under paragraph (2).

On the other hand, with respect to legal reserve of inheritance, Article 1112 of the Civil Act provides that the legal reserve of inheritance of an heir shall be 1/2 of the inheritance stipulated by law in the case of lineal descendants or spouse of the inheritee, and 1/3 of the inheritance stipulated by law in the case of lineal ascendants or siblings of the inheritee. Article 1113(1) of the Civil Act provides that "The legal reserve of inheritance shall be calculated by adding the value of the property at the time of the commencement of inheritance to the value of the inheritee and deducting the total amount of the obligation." Article 1118 of the Civil Act provides that "Article 101 (Inheritance by Representation), Article 108 (Shares of Inheritance by Special Beneficiary), and Article 1010 (Shares of Inheritance by Representation) shall apply mutatis mutandis to legal reserve of inheritance."

In light of the above provisions, the entitlement to a contributory portion has the nature as a premise for division of inherited property. As such, in order to guarantee a certain portion of the heir’s share of inheritance, there is no relation with the legal reserve of inheritance that limits the freedom of disposal of an inheritee’s property. Therefore, even if there is a person among co-inheritors who specially supported an inheritee or contributed to the maintenance or increase of the inheritee’s property by living together, nursing for a considerable period of time or by any other means, the entitlement to a contributory portion cannot be asserted in a lawsuit claiming the entitlement to a contributory portion in a lawsuit claiming a legal reserve of inheritance (see Supreme Court Decision 94Da8334 delivered on October 14, 1994), and even if the entitlement to a contributory portion has been determined through an agreement by co-inheritors or a family court’s adjudication, the entitlement to a contributory portion cannot be deducted in calculating the legal reserve of inheritance, and even if the entitlement to a contributory portion has

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following: (a) the deceased, while living together with the Defendant before his birth, donated a total of KRW 160 million to the Defendant; (b) as a result, the deceased did not remain in the deceased’s property at the time of his death; (c) the Defendant filed a claim for adjudication on the division of inherited property and the contributory portion; (d) although the Defendant did not have inherited property subject to division, the claim for the division of inherited property was unlawful due to the lack of inherited property subject to division; and (e) the claim for the contributory portion premised on the claim for division of inherited property was dismissed in entirety (after this, the Defendant filed a complaint and reappeal against the foregoing

C. Examining the above facts in light of the legal principles as seen earlier, insofar as the Defendant’s entitlement to a contributory portion was not determined in the inherited property division and the judgment on the entitlement to a contributory portion, it is evident that the Defendant is unable to claim the entitlement to a contributory portion in this case, and even if the entitlement to a contributory portion was determined, it cannot be deducted from the underlying property

Therefore, the court below is just in rejecting the Defendant’s defense of the entitlement to a contributory portion, while including the above KRW 160 million in total as basic property for calculating the entitlement to a legal reserve. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on the calculation of entitlement

2. As to the remaining grounds of appeal

A. The ground of appeal that the plaintiffs did not pay hospital expenses or medical care expenses of the deceased is nothing more than an error in the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below, and thus, it cannot be viewed as a legitimate ground of appeal.

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable for the lower court to have determined that Plaintiff 2 and Plaintiff 3 received money from the Deceased as the advance payment of inherited portion for reasons indicated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err

C. The assertion that the deceased’s donation to the Defendant is an onerous donation is the first argument in the final appeal, and cannot be a legitimate ground of appeal. Moreover, the materials submitted by the Defendant alone cannot be accepted.

3. Conclusion

Therefore, all appeals by the Defendant 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 Kim Chang-suk (Presiding Justice)