Where the period of disappearance at the time of the enforcement of the former Civil Act expires and the adjudication of disappearance is made after the enforcement of the Civil Act, the order of family inheritance and property inheritance

If the period of disappearance of an inheritee expired on May 27, 1958 at the time of the enforcement of the former Civil Act, but the disappearance was declared on June 1, 1967 after the enforcement date of the new Civil Act, the inheritance relationship should be governed by the Civil Act pursuant to Article 25(2) of the Addenda of the Civil Act. As such, the deceased's property cannot be the heir of Australia, and the heir of property of the inheritee jointly succeeds to the inheritance pursuant to the current Civil Act, such as sibling

Article 25(2) of the Addenda of the Civil Code, Articles 28, 984, and 100 of the Civil Code

Supreme Court Decision 82Meu1376 Decided April 12, 1983

Plaintiff

The legal representative of the Republic of Korea and an associate of Justice

Suwon District Court Decision 82Na405 delivered on February 16, 1983

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal by the defendant litigant are examined.

According to the reasoning of the judgment below, the court below acknowledged the fact that the land of this case was originally owned by the deceased non-party 1, the father of the plaintiff, and that the non-party 1 died on August 7, 1957, and that the non-party 2, the father of this case was deceased on June 1, 1967, but was declared bankrupt on June 1, 1967 and died on the expiration of the period of disappearance on July 27, 1958, and determined that the land of this case was currently owned by the plaintiff who was the plaintiff of the above non-party 1, the plaintiff of this case,

However, according to the provisions of Article 25 (2) of the Addenda of the Civil Code, in a case where the inheritance of head of family or property is commenced due to the adjudication of disappearance, if the missing period expires during the period of the enforcement of the Civil Code, the provisions of the Civil Code shall apply to the first inheritance order and other inheritance. Thus, even if the date on which the death of the above non-party 2 is terminated due to the expiration of the period of the enforcement of the Civil Code, even if the date of the adjudication of disappearance falls after the enforcement of the Civil Code, the adjudication of disappearance is made after the enforcement date of the Civil Code, so the inheritance relationship shall be governed by the Civil Code. Accordingly, according to the provisions of the Civil Code, the inheritance relationship shall be governed by the Civil Code. Thus, the time of the original adjudication in which the plaintiff, who is the birth of

In addition, according to the evidence No. 1-2 (No. 1-2), it is recognized that the above non-party No. 2 has no lineal descendant or lineal ascendant, and there are many persons including the plaintiff, so all of the above brothers and sisters under the Civil Act should be deemed to have jointly inherited the above non-party No. 2's property. However, the court below's decision that the real estate of this case was owned solely by the plaintiff is erroneous in the misapprehension of legal principles as to inheritance in this regard.

Ultimately, the court below's above violation of law constitutes grounds for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and it does not contain any argument on this point. Thus, the judgment below is reversed and the case is remanded to Suwon District Court Panel. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)