Seoul Guarantee Insurance Co., Ltd. (Attorneys Choi Han-chul et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Law Firm Man, Attorneys Jeong Jae-ro, Counsel for the defendant-appellant)

June 23, 2005

Seoul Central District Court Decision 2003Gadan368999 Decided July 7, 2004

1. The part against Defendant 1 in the judgment of the first instance shall be modified as follows:

Defendant 1 pays to the Plaintiff 11.5% per annum from August 29, 1990 to September 27, 1990; 19% per annum from the next day to November 30, 1991; 21% per annum from the next day to February 28, 193; 20% per annum from the next day to March 31, 193; and 17% per annum from the next day to the day of full payment.

2. The plaintiff's appeal against the defendant 2 is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant 1 shall be borne by both Defendant 1 and Defendant 2, and the costs of appeal arising between the Plaintiff and Defendant 2 shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The judgment of the first instance shall be revoked, and the defendants shall pay to the plaintiff 10,40,00 won with 11.5% per annum from August 29, 1990 to September 27, 1990; 19% per annum from the next day to November 30, 191; 21% per annum from the next day to February 28, 193; 20% per annum from the next day to March 31, 193; and 17% per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be admitted in full view of the overall purport of the pleadings in Gap evidence of 1 to 3, Eul evidence of 1, 2, and 7 (including each number):

A. The Plaintiff (formerly: Korea Guarantee Insurance Co., Ltd.) entered into a payment contract and performance contract guarantee insurance contract between the deceased Nonparty 1 (hereinafter “the deceased”) and the deceased, in order to guarantee the performance of the duties with respect to the wheelchairs test device supplied by the deceased to Nonparty 2 Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”), as follows:

The insurance contract amount as of the date of concluding the order in the main sentence, the insurance period, the insurance contract amount as of July 9, 1990, KRW 520,000,000 from March 16, 1990 to July 25, 1990, and KRW 3250,000,000 on April 17, 1990 to May 16, 1990, and May 2, 1990, the non-party company as of March 16, 1990, and the non-party company as of May 18, 1990, KRW 520,000 on April 18, 1990 to the non-party company as of May 22, 1990.

B. At the time of each guarantee insurance contract, the Deceased agreed to pay the insurance money to the Plaintiff, and the delay interest rate as determined by the Plaintiff, if the Plaintiff fulfilled each of the above guaranteed obligations.

C. After that, as the deceased did not perform the above duty of delivery to the non-party company, the non-party company claimed insurance money under each of the above guaranty insurance contracts against the plaintiff. On August 28, 1990, the plaintiff paid insurance money of KRW 20.8 million to the non-party company in total ( KRW 5.2 million + KRW 10.4 million + KRW 5.2 million) to the non-party company.

D. Meanwhile, the overdue interest rate applied by the Plaintiff to each of the above guarantee insurance contracts is 11.5% per annum from August 29, 1990 to September 27, 1990, 19% per annum from the next day of the payment of insurance proceeds, 21% per annum from the next day to November 30, 191, 21% per annum from the next day to February 28, 193, 20% per annum from the next day to March 31, 193, and 17% per annum from the next day to the next day.

E. On September 19, 195, the Plaintiff filed a lawsuit against the Deceased with the Seoul District Court (detailed case number omitted), and was sentenced by the above court in favor of the Plaintiff on September 19, 195 that “the deceased shall pay the Plaintiff KRW 20.8 million and the damages for delay by adding the rate of KRW 11.5% per annum from August 29, 190 to September 27, 1990; 19% per annum from the next day to November 30, 191; 21% per annum from the next day to February 28, 1993; 20% per annum from the next day to March 31, 193; and 17% per annum from the next day to the day of full payment.” The judgment became final and conclusive as it is.

F. When the Defendants, their parents, due to the death of the Deceased on July 17, 200, were co-inheritors, the Plaintiff filed a lawsuit against the Defendants on October 17, 2003, and served the duplicate of the complaint to Defendant 1 on October 30, 2003, and Defendant 2 on October 29, 2003, respectively. Accordingly, Defendant 1 was the Seoul Family Court (the case number omitted) on November 5, 2003, and Defendant 2 reported each qualified acceptance and received each of the above reports from the Seoul Family Court (the case number omitted) on November 13, 2003 (the case number omitted) and the Seoul Family Court (the case number omitted) on November 13, 2003, respectively.

2. To arrange the arguments and issues of the parties;

A. The plaintiff's assertion

The Defendants, as the inheritors of the Deceased, are obligated to pay the Plaintiff the sum of the above payment insurance proceeds of KRW 20,80,000 and damages for delay thereof in the share of inheritance. On June 13, 2003, prior to the filing of the lawsuit in this case, the Plaintiff notified the Defendants by content-certified mail a notice on the record of inheritance obligations of the Deceased and the notice on the occurrence of inheritance obligations (hereinafter “the notice in this case”). As such, the Defendants should be deemed to have known, or had gross negligence, that the inheritance obligation of the Deceased would have exceeded the inherited property at the latest around June 13, 2003 when the notice in this case was received, and each of the above reports on qualified acceptance received after the lapse of three months thereafter are invalid.

B. The defendants' assertion

The Defendants did not receive the written notification of this case, and asserted that only within the extent of inherited property should the Plaintiff’s claim be accepted, on October 29, 2003 (Defendant 2) and October 30, 2003 (Defendant 1) received the duplicate of the written complaint of this case. The Defendants asserted that the above content of inherited property should be known, and that the Plaintiff’s claim should be accepted only within the extent of inherited property because they received a lawful acceptance decision by filing a qualified acceptance report within three months thereafter.

3. Determination

(a) Facts of recognition;

The following facts may be acknowledged, either in dispute between the parties, or in consideration of the overall purport of the pleadings, as a whole, to the Gap evidence Nos. 4, 5, 10, 16, 17, and Eul evidence Nos. 3 through 6, 11, each evidence Nos. 3 through 6 and 11, the witness Non-party 3, and 4, and the fact-finding to the Yongsandong Management Office.

⑴ 피고 1의 주민등록상 주소지는 1993. 9. 17.부터 1998. 3. 24.까지는 서울 용산구 ★ (아파트명 생략)아파트 2동 604호(이하 ‘ 제1 아파트아파트’라 함), 1998. 3. 25.부터 1999. 4. 12.까지는 서울 용산구 (상세주소 생략), 1999. 4. 13.부터 2000. 5. 19.까지는 서울 용산구 (상세주소 생략), 2000. 5. 20.부터 현재까지는 다시 제1 아파트아파트이며, 피고 1은 위 각 주민등록상 주소지에서 실제로 거주하였다. 한편 망인의 주민등록상 주소지는 피고 1과 계속 동일하였으나 실제로는 1995.경부터 주거를 독립하여 생활하고 있었다.

The domicile of Defendant 2, from September 17, 1993 to September 12, 1999, was changed to the domicile of Defendant 1, and from September 13, 1999 to July 26, 200, Gangseo-gu Seoul (Sae-si omitted) Gangseo-gu (Sae-si omitted), 301 Dong 1404 (hereinafter referred to as “Second apartment”) from July 27, 200, and 1404 (hereinafter referred to as “the domicile of Nonparty 5”), from July 27, 2000). However, from September 17, 1995 to the end of the period from September 13, 199, Defendant 2 resided in the domicile of Nonparty 6 (Sa-si omitted).

On June 13, 2003, the Plaintiff sent the notice of this case to Defendant 1’s apartment, namely, Defendant 1’s first apartment, and Defendant 2’s second apartment, at the time by mail of content certification, and provided guidance to submit necessary procedures within the period stipulated in Article 1019 of the Civil Act in the case of renunciation of inheritance.

The notice of this case against Defendant 1 was received by Nonparty 4 on June 16, 2003 by the apartment guard who works for the 1st apartment apartment 2nd apartment 2nd apartment 2nd apartment , and according to the guidelines on delivery and receipt of the registered mail of the 1st apartment 1st apartment 2nd apartment 2nd apartment 2nd apartment 2nd apartment 2nd apartment 2nd apartment 1st apartment 200. According to the guidelines on delivery and receipt of the registered mail of the 1st apartment 1st apartment 1st apartment 2nd apartment 2nd apartment 4th apartment 1st apartment 1st apartment 1st apartment 1st apartment 1st apartment 1st apartment 1st apartment 20

(v) On June 16, 2003, the instant notice against Defendant 2 received by Nonparty 7 working for the 303-dong apartment units and the 305-dong guard center. At the time, the employees working for the 2-dong guard center for the 301-dong apartment units, which are Defendant 2’s domicile, were Nonparty 3. According to the guidelines on the distribution and receipt of the registered mail of the 2-house apartment units, the registered security guards are prohibited from receiving the registered mail sent to the occupants on behalf of the occupants. However, in the event that the security guards received it on behalf of the occupants for the convenience of the occupants, it is difficult for them to deliver it to the occupants or transfer it to the subsequent security guards, and Nonparty 3 did not receive the said notice from Nonparty 7. Meanwhile, each of the instant notice against the Defendants was not returned to the Plaintiff.

B. Determination as to Defendant 1

According to the above facts, if it is acknowledged that the notice of this case, which is a content-certified mail, has not been returned after the delivery of the apartment box where 1 resides, and furthermore, if the content-certified mail has not been dispatched and returned, it shall be deemed that it was served at that time unless there are special circumstances (see Supreme Court Decision 96Da38322, Feb. 25, 1997). If apartment security guards receive the mail instead of the security guards, and if the occupants do not raise any objection, they shall be deemed to have the right to receive the mail (see Supreme Court Decision 98Du3679, May 15, 1998). The issue of whether the notice of this case has arrived to Defendant 1 constitutes the requirement of qualified acceptance of the above defendant under Article 1019(3) of the Civil Act, and the burden of proving that the heir did not know the above fact that the heir exceeded the inheritance obligation without any gross negligence is not known to the defendant (see Supreme Court Decision 2003Da31731, May 1, 2007, etc.).

Therefore, Defendant 1, at least around June 16, 2003, knew of the fact that the inheritance obligation of the deceased was exceeded, and the qualified acceptance as reported on November 5, 2003, which was three months after it, has no effect.

C. Determination as to Defendant 2

(1) The notification of this case sent to Defendant 2 is also a content-certified mail and not returned to the Plaintiff. However, according to the above fact-finding, the above notification to Defendant 2 was not received by the apartment security guard of the above defendant, and special circumstances are acknowledged that the defendant 2 did not transfer the apartment security guard of the above defendant after the other consent security guard received it, and thus, it cannot be deemed that the defendant 2 received the above notification and came to know of the contents thereof at around June 16, 2003, and there is no evidence to deem that the above defendant knew of the excess of the inheritance obligation of the deceased at that time.

B. As to whether Defendant 2 had gross negligence since July 17, 2000 (the date of the deceased’s death) and around June 16, 2003 (the time of arrival of the notification of this case), the Plaintiff asserted that, around 1995, Defendant 2 had been negligent due to the Plaintiff’s failure to know or know about the excess of the deceased’s inheritance obligations, Defendant 2 had been served as the first apartment unit in which the Defendants had resided at the time of the deceased’s domicile. From around 1997, Defendant 2 asked the deceased to demand reimbursement of the amount of reimbursement to his domicile, and urged the deceased by telephone. After the deceased’s death, Defendant 2 had already known or was gross negligence due to the Plaintiff’s failure to know the excess of the deceased’s inheritance obligations.

According to each description of the evidence Nos. 7, 10, 11 (including each number), the plaintiff filed a claim for reimbursement against the deceased on or around 1995, when it was impossible to serve the deceased with his domicile as Seoul (detailed address omitted), the apartment No. 1 apartment was revised and served as his domicile, and the judgment rendered by the confession party was rendered. The plaintiff sent a urging notice to his domicile or urged the deceased to pay by telephone from around 1997 to his domicile. After the death of the deceased, it is recognized that the plaintiff sent a demand notice to the Defendants’ resident registration address to the Defendant’s address, and the telephone communications was made with Nonparty 8 (Defendant 5’s wife) and the deceased’s wife as to the repayment of debt.

However, the facts acknowledged earlier and the facts indicated in the evidence Nos. 8 and 9 (including the virtual number) are as follows: (i) the deceased did not reside in the first apartment house, which is the place of service at the time of filing the claim for reimbursement; (ii) the defendant did not live in his/her resident registration until the time of death; and (iii) the defendant did not live in his/her business until the time of his/her death; and (iv) the defendant did not live in his/her family; and (iv) the defendant did not live in his/her family; and (v) his/her family did not appear in his/her family after his/her death; and (v) the defendant 2 did not appear in his/her family from the end of the time of his/her claim for reimbursement; and (v) the defendant 2 could not be seen as being urged to receive the plaintiff's demand for reimbursement from his/her family in light of the legal principles as seen above, even if he/she did not have sufficiently known that he/she had died in his/her domicile or his/her family.

Therefore, the Plaintiff’s assertion that Defendant 2 was grossly negligent due to Defendant 2’s failure to know the excess of the deceased’s inheritance obligation even from the time the notice of this case was served after the deceased’s death.

Article 1019(3) of the Addenda of the amended Civil Act (amended by Act No. 6591 of Jan. 14, 2002), namely, Article 3 (3) of the Addenda of the amended Civil Act (amended by Act No. 6591 of Jan. 14, 2002), a person who knew of the fact that the inheritance obligation exceeds the inherited property and fails to report the qualified acceptance even before this Act enters into force, without gross negligence, may make a qualified acceptance under the amended provisions of Article 1019(3) within three months from the enforcement date of this Act: Provided, That if a qualified acceptance is not made within the pertinent period, the qualified acceptance shall be deemed to have been made only if Defendant 2 knew of the commencement of inheritance on or around July 17, 200, the deceased’s death date, but he did not make a qualified acceptance until April 13, 202, which became three months from the enforcement date of the amended Civil Act, and therefore, the latter proviso of the Addenda.

In this case, it is reasonable to interpret that a qualified acceptance may be made within three months from the date the inheritor becomes aware that the inheritance obligation exceeds the inherited property pursuant to Article 1019(3) of the amended Civil Act, notwithstanding the proviso of Article 1019(3) of the amended Civil Act where the inheritor becomes aware of the excess of the inheritance obligation after the amended Civil Act enters into force without gross negligence (see Supreme Court Decision 2004Da56912, Apr. 14, 2005). Thus, in this case, as long as it is recognized on Oct. 29, 2003, after the enforcement date of the amended Civil Act (the delivery date of the copy of complaint in this case), Defendant 2 became aware of the fact that the inheritance obligation of the deceased was exceeded the inheritance obligation of the deceased on Oct. 29, 2003 (the delivery date of the copy of complaint in this case) without any gross negligence, the qualified acceptance made on Nov. 13, 2003, which is within three months thereafter, is valid.

D. Sub-committee

Therefore, since the qualified acceptance by Defendant 1 is invalid, and the qualified acceptance by Defendant 2 is valid, Defendant 1 is obligated to pay to the Plaintiff 10,40,000 won (paid insurance money x KRW 20,800,000 x 1/2 of inheritance) and damages for delay calculated with the annual rate of 11.5% from August 29, 1990 to September 27, 1990, 199; 19% from the next day to November 30, 191; 21% from the next day to February 28, 193; 20% per annum from the next day to March 31, 193; and 17% per annum from the next day to the day of full payment (interest rate set by each Plaintiff). Defendant 2 is obligated to pay the Plaintiff money within the limit of inherited property.

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is justified, and the claim against the defendant 2 is accepted within the scope of the above recognition, and the remaining claim is dismissed as there is no ground. Since the part against the defendant 1 among the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal against the defendant 1 is accepted, and the judgment of the court of first instance is modified as above, and the plaintiff's appeal against the defendant 2 is dismissed as it is without reason, and it is so decided as per Disposition.

Judges Park Jin-hun (Presiding Judge) Lee Jin-young

Judges Lee Ma-young-young Maternity Leave