[1] In a case where a monetary obligation is jointly inherited, whether it can be divided into inherited property (negative)

[2] The meaning of the consultation in case where there is an agreement among co-inheritors on division of the inherited debt which cannot be the object of the division of the inherited property

[1] In a case where the content of performance, such as a pecuniary obligation, is jointly inherited, such performance is naturally divided and reverted to co-inheritors according to the statutory share of inheritance at the time of commencement of inheritance. Therefore, there is no room to be divided into inherited property.

[2] In cases where there is an agreement among co-inheritors on the division of inherited property with respect to the inherited property that cannot be the object of division of inherited property, such agreement does not correspond to the division of inherited property as stipulated in Article 1013 of the Civil Act, but an agreement by which one of the co-inheritors, upon the said division agreement, shall bear the obligation in excess of the statutory inherited property, shall have the substance of the assumption of an obligation with exempted obligation. Therefore, in relation to the obligee, the consent of the obligee under Article 454 of the Civil Act is required in order for other co-inheritors to be exempted from all or part of the obligation according to the statutory inherited property, and there is no room to apply Article 1015 of the Civil Act, which provides for the retroactive effect of division of inherited property

[1] Article 1013 of the Civil Act / [2] Articles 454, 1013, and 1015 of the Civil Act

The Credit Guarantee Fund (Attorney Ansan-sung, Counsel for defendant-appellant)

Defendant (Attorney Kim Yong-Nam, Counsel for defendant-appellant)

Seoul High Court Decision 96Na42491 delivered on January 17, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

If the content of performance, such as a pecuniary obligation, is jointly inherited, it is naturally divided and reverted to co-inheritors according to the statutory share of inheritance at the same time when the inheritance commences, so there is no room to be an object of division of inherited property.

Therefore, in cases where there is an agreement on division among co-inheritors with respect to the inherited property that cannot be the object of division of inherited property as seen above, such agreement does not constitute an agreement on division of inherited property as stipulated in Article 1013 of the Civil Act. However, according to the agreement on division, an agreement by which one of the co-inheritors bears the obligation in excess of the statutory inherited property according to the agreement on division is deemed to have the substance of the assumption of an obligation with exempted obligation. Therefore, in relation to the obligee, the consent of the obligee pursuant to Article 454 of the Civil Act is necessary to exempt other co-inheritors from all or part of the obligation according to the statutory inherited property. There is no room to apply Article 1015 of the Civil Act, which prescribes the retroactive effect of division of inherited property.

The judgment of the court below to the same purport is just and there is no error of law such as misapprehension of legal principles as the theory of lawsuit.

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 on the bench.

Justices Lee Don-hee (Presiding Justice)