Whether the acquisition of property exceeding the inherent share of inheritance by consultation division can be deemed as a gift

According to Article 1015 of the Civil Act, the division of inherited property is retroactively effective from the time of the commencement of the inheritance. As such, a consultation and division under Article 1013 of the Civil Act with respect to inherited property among co-inheritors has been made, even if one of the co-inheritors acquires the property exceeding the inherent share of inherited property, it shall be deemed to have been succeeded from the inheritee at the time of the commencement of the inheritance, and it shall not be deemed to have been donated from

Article 1013, Article 1015, Article 29-2 of the Inheritance Tax Act

Supreme Court Decision 85Nu582 Decided December 10, 1985, 86Nu14 Decided July 8, 1986, 87Nu90 Decided April 4, 1987, 87Nu440 Decided November 24, 1987 (dong) and 87Nu751 Decided November 24, 1987 (dong)

Plaintiff

Head of the Pakistan Tax Office

Seoul High Court Decision 86Gu1509 Decided June 8, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to Article 1015 of the Civil Code, the division of inherited property is effective retroactively from the time of commencement of the inheritance. This means that the property belonging to each co-inheritors by division has already been succeeded to a person who was directly divided from the inheritee at the time of commencement of the inheritance, and it does not result in the transfer of inheritance among co-inheritors by division.

Therefore, even if one of the co-inheritors acquires the property exceeding his own share of inheritance as a result of an agreement division under Article 1013 of the Civil Act with respect to inherited property among co-inheritors, it shall be deemed to have been succeeded from the inheritee at the time of the commencement of inheritance, and it shall not be deemed to have been donated from other co-inheritors (see Supreme Court Decision 86Nu14, Jul. 8, 1986).

The court below's decision was just and it did not err in the misapprehension of legal principles, such as the theory of lawsuit, after recognizing the fact that a division of inherited property has been made among co-inheritors, including the plaintiff, through such macro-Evidence.

Therefore, the appeal is 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.

Justices Lee Lee-hee (Presiding Justice)