Plaintiff (Attorney Jeon Jae-jin, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Roh School, Attorneys Doh-il et al., Counsel for the defendant-appellant)

July 23, 2009

Suwon District Court Decision 2007Kadan670 Decided August 26, 2008

1.The judgment of the first instance shall be modified as follows:

A. Defendant 3: 5% per annum from February 8, 2007 to August 26, 2008; 20% per annum from the next day to the date of full payment; 5% per annum from February 8, 2007 to September 24, 2009 to the date of full payment; and 20% per annum from the next day to September 24, 2009 to the date of full payment; and

Each share of money shall be paid.

B. The plaintiff's remaining claims against the defendant 3 and the claims against the defendant 1 and 2 are dismissed, respectively.

2. Of the total litigation cost, the part arising between the Plaintiff and Defendant 3 shall be borne by Defendant 3, and the part arising between the Plaintiff, Defendant 1 and Defendant 2 shall be borne by the Plaintiff.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

Defendant 1 shall pay to the Plaintiff 17,142,858 won, Defendant 2, and Defendant 3, respectively, 11,428,571 won, and 20% interest per annum from the day following the delivery of the copy of the instant complaint to the day of complete payment.

2. Purport of appeal

A. The plaintiff shall revoke the part against the plaintiff who ordered payment under the judgment of the court of first instance. The defendant 1 shall be paid to the plaintiff, while the defendant 2, and the defendant 3 shall be paid 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment with respect to each of the above 5,714,286 won and each of the above 5,714,286 won.

B. Defendants: The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

A. From August 2003, the Plaintiff, through Nonparty 4, who was the husband, made a monetary transaction with the deceased Nonparty 1 under the pretext of real estate investment or loan. From May 18, 2004, the Plaintiff granted to the deceased Nonparty 1 KRW 52 million on May 18, 2004, KRW 10 million on May 31, 2004, KRW 20 million on March 3, 2005, KRW 82 million on the aggregate.

B. On April 21, 2005, the deceased non-party 1 entered into a sales contract with Nonparty 5 to purchase KRW 30 million for the purchase price of KRW 656 square meters and the entire housing and facilities on the land (number 2 omitted) (hereinafter “real estate number 2 omitted”) from Pyeongtaek-si. The number of buyers under the sales contract (Evidence 2) prepared at the time of the conclusion of the above sales contract is indicated as “non-party 1 and one other.”

C. Around February 2006, the deceased Nonparty 1 drafted and delivered to the Plaintiff a letter of payment (a evidence No. 1-1, hereinafter “instant letter of payment”) with the following content as follows.

1) The deceased non-party 1 has the obligation to pay 60 million won to the Plaintiff. On March 15, 2006, the deceased non-party 1 agreed to pay 20 million won when he receives intermediate payment out of the sale price of the factory site located in Pyeongtaek-si Stabilization Co., Ltd. (number 3 omitted) (hereinafter “the instant factory site”) on March 15, 2006, and pay 40 million won when he receives the remainder of the factory site.

2) The instant case is KRW 60,000,000,000 paid by the Plaintiff when purchasing real property (number 2 omitted).

(c) Accompanying documents: One certificate of personal seal impression; and

D. Around January 2006, the deceased Nonparty 1 sold the instant factory site and its ground factory to Nonparty 6, and received an intermediate payment of KRW 250 million from Nonparty 6 on March 15, 2006.

In accordance with the direction of the deceased non-party 1, the deceased non-party 2 paid 40 million won out of the above KRW 250 million to the plaintiff via Non-party 4 on March 17, 2006, pursuant to the direction of the deceased non-party 1.

E. Nonparty 2 obtained the certificate of personal seal impression from Nonparty 1 on March 20, 2006 and March 22, 2006, and issued two copies among them to Nonparty 4.

Nonparty 4 attached one copy of the certificate of personal seal impression received from Nonparty 2 (as of March 20, 2006) to the letter of the instant payment.

F. The deceased non-party 1 died on March 23, 2006, and as the deceased non-party 1's heir, the deceased non-party 1 was Defendant 1 and his wife, Defendant 2 and 3.

The Defendants were adjudicated on June 22, 2006 that “the period of inheritance (or renunciation) of the Defendant’s property was extended by three months until September 23, 2006” (Seoul District Court Decision 2006Ra247). Defendant 1 reported the renunciation of inheritance on September 22, 2006 to the same court 2006Ra388, and Defendant 2 was accepted on September 29, 2006, respectively, on September 22, 2006, as the same court 2006Ra3877, respectively. Defendant 3 reported the qualified acceptance on September 25, 2006.

[Reasons for Recognition] There is no dispute over a part of the document as a whole, and there is no dispute that the stamp image next to the name of the deceased non-party 1 is based on the seal of the deceased non-party 1, the authenticity of the document as a whole is presumed to have been established. The defendants asserted that the plaintiff arbitrarily affixed the seal of the deceased non-party 1, but there is no evidence to acknowledge the forgery of the document.) Gap evidence 1-2, Gap evidence 1-2, Eul 2, 6, Gap evidence 11-1 through 13, Gap evidence 14, Eul evidence 15-1, 15-2, Eul evidence 2, Eul evidence 23, Eul evidence 1-1 through 3, Eul evidence 2, Eul evidence 2, Eul evidence 8-1, Eul evidence 2, Eul, Eul evidence 10, 24, each of the statements as set forth in the first instance witness 2, Eul evidence 2, Eul evidence 4, and the purport of the whole testimony, testimony of the non-party 5 testimony.

2. Determination as to the cause of action

A. The plaintiff's assertion

The plaintiff had a total of 82 million won against the deceased non-party 1 from May 18, 2004 to March 3, 2005. Among them, the claims of KRW 52 million on May 18, 2004 and KRW 62 million on May 31, 2004 were leased to the deceased non-party 1 on the ground that it is necessary for the deceased non-party 1 to purchase real estate (number 2 omitted). Since the sales contract for real estate between the deceased non-party 1 and the non-party 5 was terminated, the plaintiff was obligated to pay KRW 6 million on the bonds of KRW 3 million on March 17, 200, KRW 400, KRW 500,000 to the plaintiff on May 31, 200.

B. Determination

The plaintiff delivered KRW 82 million to the deceased non-party 1 on May 18, 2004 to March 3, 2005. The fact that the non-party 2 paid KRW 40 million to the plaintiff on March 17, 2006 according to the order of the deceased non-party 1 is as follows. The facts acknowledged as above are as follows. In other words, the plaintiff delivered KRW 2 million to the deceased non-party 1 on May 18, 2004 and KRW 10 million on May 31, 2004, and KRW 200,000 to the plaintiff on May 31, 2004. In light of each of the delivery dates and amount, it can be deemed that the deceased non-party 1 borrowed from the plaintiff on May 5, 200 and KRW 200,000,000 were paid KRW 600,000 to the plaintiff on May 31, 200.

3. Determination as to the defendants' defense

(a) Defenses to settle accounts;

The defendants asserted that the deceased non-party 1 tried to secure all the claims against the deceased non-party 1 as the deceased non-party 1's health was not good at the time when preparing and delivering the letter of payment in this case to the plaintiff, and that the letter of payment in this case was prepared in settling all the claims relations between the plaintiff and the deceased non-party 1. Thus, at the time when the plaintiff paid 40 million won to the plaintiff on March 17, 2006, the plaintiff only had the claim against the deceased non-party 1 60 million won based on the letter of payment in this case.

However, the instant payment statement clearly states that “(number 2 omitted) the Plaintiff paid 60 million won to the deceased Nonparty 1 at the time of purchasing real estate.” According to the instant payment statement, the deceased Nonparty 1 received the intermediate payment of the land for the instant case and paid 20 million won to the Plaintiff by paying the down payment. On March 15, 2006, the deceased Nonparty 1 received the intermediate payment of the land for the instant case from Nonparty 6, and Nonparty 2 paid 40 million won to the Plaintiff according to the deceased Nonparty 1’s order that it would be difficult for the Plaintiff to have agreed to pay 60 million won among the above 40 million won, or that there was no agreement between the Plaintiff and Nonparty 1 to pay 60 million won to the Plaintiff without any specific reasons to deem that the Plaintiff paid 60 million won to the Plaintiff’s 100 million won other than the Plaintiff’s claim to have been delivered.

(b) Defenses of performance;

The Defendants asserted that, in addition to the Plaintiff’s receipt of KRW 40 million from Nonparty 2 on March 17, 2006, the deceased Nonparty 1 paid the Plaintiff more than KRW 20 million.

In light of all the circumstances, the plaintiff stated that he received KRW 20 million from the deceased non-party 1 in the complaint of this case from the deceased non-party 1 in March 2006. However, the plaintiff was present at the 8th day of the first instance trial and stated that "20 million won is included in the amount of KRW 40 million received from the deceased non-party 1 in the complaint of this case on March 17, 2006." In light of these circumstances, it is difficult to view that the plaintiff was a person who received more repayment than KRW 40 million from the deceased non-party 1 in addition to KRW 40 million received from the non-party 2, and there is no evidence to support that the deceased non-party 1 paid additional money to the plaintiff. Thus, the above defense by the defendants is without merit.

(c) Inheritance, renunciation and qualified acceptance defenses;

1) As Defendant 1 and 2 renounced inheritance due to the deceased non-party 1’s death, Defendant 1 and 2 did not have a duty to repay the deceased non-party 1’s inheritance obligation, and Defendant 3 asserts that the deceased non-party 1 is liable to repay the inheritance within the limit of inherited property according to

As to this, the Plaintiff received KRW 10 million from the deceased non-party 1’s inherited property from Defendant 2, and disposed of or concealed it voluntarily. ② Defendant 2 received KRW 10 million from the deceased non-party 1’s claim for the purchase price against the deceased non-party 3, and fraudulently consumed or concealed it. ③ The Defendants concluded a new contract to modify the details of the claim for the purchase price against the deceased non-party 1, and concluded a disposal act on inherited property. ④ Defendant 3 did not intentionally enter the deceased non-party 1’s claim for the purchase price against the deceased non-party 3 in the list, and thus, Defendant 3 did not intentionally enter the claim for the purchase price against the deceased non-party 1 in the list, and thus, the Defendants’ waiver of inheritance and the qualified acceptance did not take effect.

2) We examine the case. On June 22, 2006, the Defendants filed a report on the refusal of inheritance on September 22, 2006 and the Defendant 3 filed a qualified acceptance report on September 25, 2006 with the court of Suwon District Court No. 2006-Ma2477 and accepted September 29, 2006 as follows: “The period of the Defendant’s property inheritance (or renunciation) is extended to three months until September 23, 2006; Defendant 1 was the same court of 2006Ra388; Defendant 2 filed a report on the renunciation of inheritance on September 22, 2006; and Defendant 3 filed a qualified acceptance report on September 25, 2006 with the same court of law as of September 25, 2006.

Meanwhile, in light of the overall purport of pleadings, Nonparty 2 filed a criminal complaint on the grounds that Nonparty 3 and 6, Nonparty 8, 22, 1-3 and 4-5, and 1, 2-8-1, 10, 15, 16, and 19 were disposed of and used at will by Defendant 1’s inherited property, Nonparty 2 transferred KRW 10 million to Defendant 3’s account on May 24, 2006, KRW 10 million to Nonparty 1 and KRW 600,000,000 to Defendant 1 and KRW 600,000,000,000 to Nonparty 2, around July 31, 2006, and KRW 100,000,000 to Defendant 1 and KRW 300,000,000,00 from Defendant 1’s account (Supreme Court Decision 200,000,00 won).

3) First, according to the above facts, the fact that Defendant 3 filed a qualified acceptance report on September 25, 2006, after the lapse of two days from September 23, 2006, which was the period of renunciation of inheritance, is apparent. Thus, Defendant 3 is deemed to have granted simple acceptance pursuant to Article 1026 subparagraph 2 of the Civil Act, and the above qualified acceptance is not effective. Thus, the above defense by Defendant 3 is without merit (amended by Act No. 8720 of Dec. 21, 2007). In addition, Defendant 1 did not know that the qualified acceptance was not made on September 23, 2006, but on the public holiday stipulated in Article 161 of the former Civil Act (amended by Act No. 8720 of Dec. 21, 2007). In light of the above fact that Nonparty 3 did not intentionally accept Nonparty 3’s report on whether to purchase and sell real estate and whether to pay the purchase and sale price, it is reasonable.

4) Next, we examine whether there was a legal ground for the simple approval to Defendant 1.

The fact that Nonparty 2 paid KRW 10 million to Defendant 1 on May 24, 2006, and that Defendant 1 wired the above KRW 10 million to Defendant 3’s account around July 31, 2006, as seen earlier, the fact that Defendant 1 wired the above KRW 10 million to Defendant 3’s account. As such, Defendant 1’s transfer of the above KRW 10 million to the account under Defendant 3’s heir Nonparty 1 to the deceased Nonparty 1’s heir cannot be seen as a change in the phenomenon or nature of inherited property. Thus, the above remittance does not constitute an act of disposal on inherited property under Article 1026 subparag. 1 of the Civil Act.

On the other hand, Article 1026 subparagraph 3 of the Civil Code refers to the act of intentionally hiding all or part of the property so that the other person can not easily recognize the existence of the inherited property, and it is insufficient to recognize that Defendant 1 intentionally concealed the inherited property by transferring the above money to the deceased Nonparty 1’s heir Defendant 3, and having Defendant 1 keep it in the account in the name of Defendant 3 (in addition, in light of the fact that Nonparty 2 paid the above KRW 10 million to Defendant 1 after receiving the criminal complaint from Defendant 1, it is difficult to deem that the above KRW 10 million was paid by Nonparty 2 as a criminal agreement, and it does not constitute the deceased Nonparty 1’s inherited property).

In addition, as to whether Defendant 1 directly participated in the settlement of the purchase price agreement on real estate and disposed of the claim for the purchase price, it is acknowledged that Defendant 3 agreed to settle the remaining amount of real estate at KRW 140 million with Nonparty 3 around October 2006, and there is no evidence to deem that Defendant 1 participated in the above settlement agreement. Even if Defendant 1 is assumed to have participated in the above settlement agreement, Article 1026 of the Civil Act provides that "the heir shall be deemed to have made simple approval in the event of any of the following subparagraphs." Article 1026 of the Civil Act provides that "Where the heir disposes of the inherited property in accordance with subparagraph 1, it shall be deemed that the heir's disposal of the inherited property in accordance with subparagraph 3, "in accordance with subparagraph 1, it shall be deemed that the heir conceals the inherited property after giving up qualified acceptance or giving up, or that the heir does not dispose of the inherited property in accordance with Article 1026 subparagraph 1 of the Civil Act shall only be deemed to have disposed of the inherited property before the inheritance obligee or the heir's disposal of the inherited property.

5) Next, we examine whether there was a legal ground for the simple approval to Defendant 2.

As seen earlier, Defendant 3 delivered KRW 10 million to Defendant 2 on October 2006, and deposited the above KRW 10 million with his own account on October 26, 2006. Accordingly, Defendant 2 received KRW 10 million from Nonparty 3 after his renunciation of inheritance, and then received the above KRW 10 million from Defendant 3, the sole heir, thereby having Defendant 3 keep the inherited property in the account under Defendant 3. Thus, it is insufficient to recognize that Defendant 2 lost its property value or intentionally concealed the above inherited property.

In addition, there is no evidence to acknowledge that Defendant 2 was involved in the settlement of the purchase price agreement on real estate and disposed of the claim for the purchase price. Even if it is assumed that Defendant 2 participated in the said settlement agreement, it does not fall under Article 1026 subparag. 1 of the Civil Act since it was after Defendant 2’s renunciation of inheritance, it does not fall under Article 1026 subparag. 1 of the Civil Act, and the said settlement agreement is merely a measure to preserve and manage the claim against Nonparty 3 of the deceased Nonparty 1, and it does not constitute an act to lose its property value, and therefore, it does not constitute Article 1026 subparag. 3 of the Civil Act

6) Thus, Defendant 1 and 2 have no obligation to pay the debt of this case, which is the deceased non-party 1’s inheritance obligation by giving up the deceased non-party 1’s inheritance, and thus, Defendant 1 and 2’s defenses are reasonable. Defendant 3 is liable to pay the debt of this case due to the occurrence of the legal ground for statutory simple approval under Article 1026 subparag. 2 of the Civil Act. Thus, the plaintiff’s re-claim pointing this out has merit.

4. Conclusion

Ultimately, Defendant 3, as the sole simple inheritor of the deceased non-party 1, as the only simple inheritor, has an obligation of KRW 11,428,571 as well as KRW 5,714,285 as cited in the judgment of the first instance court, on the record, from February 8, 2007 to August 26, 2008, which is a date when the judgment of the first instance is rendered, to dispute as to the existence and scope of the obligation, 5% per annum under the Civil Act until August 26, 2008, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment; 5,714,286 won as additionally cited in the trial; 11,428, 571 - 5,714,285 won per annum from the next day to 200 per annum of the above obligation; and 20% per annum from February 8, 2009.

Therefore, the plaintiff's claim against the defendant 3 of this case is accepted within the extent of the above recognition, and the remaining claim against the defendant 3 of this case and the claim against the defendant 1 and 2 of this case are dismissed as it is without merit. Since the part of the judgment of the court of first instance which partially different conclusions are unfair, the plaintiff's appeal against the defendant 3 of this case and the appeal against the defendant 1 and 2 of this case shall be accepted, and the judgment of the court of first instance shall

Judges’ fee (Presiding Judge)