[1] The purport of Article 1008 of the Civil Code as to the share of inheritance of the special beneficiary

[2] In a case where there is a person among co-inheritors who made a special benefit from the inheritee, whether Article 1114 of the Civil Code applies (negative)

[3] The time of calculating the value of the donated property, which is the basis of calculating legal reserve of inheritance

[4] In a case where a third party, who is not the co-inheritors and co-inheritors, received each donation or testamentary gift from the inheritee, the scope of their respective obligations to return the forced portion

[1] The purport of Article 1008 of the Civil Act is to treat the gift property as pre-paid portion of the inheritance in order to ensure fairness among co-inheritors in cases where there is a special beneficiary who received a gift or testamentary gift from the inheritee among co-inheritors, and to consider it in calculating the specific share of inheritance.

[2] In a case where there is a person among co-inheritors who has made special profits from a pre-sale donation of property from the inheritee, the provisions of Article 1114 of the Civil Code are excluded. Accordingly, the donation is included in the basic property for calculating the legal reserve of inheritance regardless of whether it would be prior to the commencement of inheritance one year, and whether both parties knew that it would inflict losses.

[3] It is justifiable for the court below to determine the time of calculating the value of donated real estate, which is the basis of calculating legal reserve of inheritance, at the time of the commencement of inheritance

[4] When there are several co-inheritors who received donations or testamentary gifts in return for the return of legal reserve of inheritance, the person entitled to legal reserve of inheritance can claim the return according to the ratio of the amount exceeding their own legal reserve of inheritance against the inheritor who exceeds their own legal reserve of inheritance in light of the purpose of the system of legal reserve of inheritance under the Civil Act and the purport of Article 11115(2) of the Civil Act. If there are third parties who are not co-inheritors and co-inheritors, the third parties can claim the return according to their ratio of the amount exceeding their own legal reserve of inheritance of inheritance of the co-inheritors. Thus, the third parties can claim the return according to their ratio of the amount exceeding their own legal reserve of inheritance of the co-inheritors.

[1] Article 108 of the Civil Act / [2] Articles 108, 1114, and 1118 of the Civil Act / [3] Article 1113 (1) of the Civil Act / [4] Articles 1113 (1) and 1115 (2) of the Civil Act

[1] [2] [4] Supreme Court Decision 93Da11715 delivered on June 30, 1995 (Gong1995Ha, 253) / [1] Supreme Court Decision 94Da16571 delivered on March 10, 1995 (Gong195Sang, 1576)

Plaintiff 1 and three others

Defendant 1 and 2 others (Attorney O-Appellee, Counsel for the defendant-appellant)

Seoul High Court Decision 94Na19978 delivered on March 22, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. We examine the defendants' grounds of appeal.

A. On the first ground for appeal

In light of the records, we affirm the judgment below's finding and judgment as to the point of points out of the theory of lawsuit, and there is no error of law by misunderstanding the legal principles on the legal reserve of inheritance system. There is no reason to discuss.

B. On the second ground for appeal

According to the records, while the deceased non-party 1 kept a passbook of KRW 21,176,325 of the deceased non-party 1's inherited property of this case, the plaintiff 1 agreed to use this money for funeral expenses, funeral expenses of the deceased, funeral hall leader, and cemetery management in the future. However, it is difficult to view that the above facts alone did not lead to an agreement by the plaintiffs to waive the legal reserve of inheritance or to waive the legal reserve of inheritance. There is no error of law that affected the conclusion of the judgment by failing to exhaust all necessary deliberations on the renunciation of legal reserve of inheritance. There is no reason

C. As to the third and fourth points

The court below held that the defendants and the non-party 2 and the non-party 3 (the non-party 3 was omitted in the judgment of the court below) received each of the real estate and cash donated before the birth of the deceased non-party 1, the inheritee, as special profit-making portion of the so-called co-inheritors, are subject to the plaintiffs' claim for the return of the legal reserve of inheritance, and the defendants are obligated to comply with the plaintiffs' claim for the return of the legal reserve of inheritance within the extent exceeding their own legal reserve of inheritance. The above deceased also donated the plaintiffs with the housing in Seoul Ho-gu, Gwangju-gu, the first month, and the house located in Chungcheongbuk-gu, and paid every other amount at the plaintiffs' request, so the value of these donated property shall be included in the basic property for the calculation of the legal reserve of inheritance, while the non-party 1 received 50,000,000 from the obligation to pay upon the formation of a de facto marital relationship with the defendant, and thus, it did not err in the judgment below's determination of evidence.

Meanwhile, Article 108 of the Civil Act, which applies mutatis mutandis by Article 11118 of the Civil Act, provides that "in case where there is a person among co-inheritors who has received a donation of property or a testamentary gift from the inheritee among co-inheritors, if the given property does not reach his/her share of inheritance, the given property shall be inherited to the extent of the deficient portion." This is intended to treat the given property as the advance payment of the inheritance in order to ensure fairness among co-inheritors in the event there is a special beneficiary who has received a donation of property or testamentary gift from the inheritee among co-inheritors, and to take this into account in calculating the specific share of inheritance (see Supreme Court Decision 93Da11715 delivered on June 30, 195). Therefore, in case where there is a person who received a special benefit from the pre-sale of property from the inheritee among co-inheritors, the provisions of Article 1114 of the Civil Act shall be excluded, and therefore, the donation shall be calculated as a basis for calculating the legal reserve of inheritance regardless of whether one year of inheritance commenced begins or not.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the share of inheritance of the special beneficiary in calculating the legal reserve of inheritance. All arguments are without merit.

D. On the fifth ground for appeal

According to the records, the plaintiffs and the defendants used the deposit claim of this case, which is the inherited property of this case, for funeral expenses and other funeral management expenses of the deceased non-party 1, but the plaintiff 1 shall keep them. If the above money used part of the deceased's tombstone as a group leader, etc. with the above money, it cannot be deemed that it was used for the above plaintiff's personal interest, and even if it was consumed for his own interest while keeping it, it is not necessary to deduct it from the infringement amount of the above plaintiff's legal reserve of inheritance. There is no reason to discuss.

E. On the sixth ground for appeal

The court below's determination of the time of calculating the value of the gift property of this case, which is the basis of calculating the legal reserve of inheritance, at the time of the commencement of inheritance by the decedent's death, is justifiable, and there is no error of law by misunderstanding the legal principles as to the calculation of the value of the gift property,

F. However, Article 1113(1) of the Civil Act provides that legal reserve of inheritance shall be calculated by adding the value of donated property to the value of the property held at the time of commencing the inheritance of the inheritee and deducting the total amount of debts. Article 1115(1) provides that the person holding the right to legal reserve of inheritance may claim the return of the shortage in the legal reserve of inheritance within the extent of the shortage in the legal reserve of inheritance due to the donation and testamentary gift provided in Article 1114 of the inheritee. Paragraph (2) of the same Article provides that when there are several persons who received the donation and testamentary gift in the case of paragraph (1), the right to legal reserve of inheritance shall be returned in proportion to the value of each gift they received if there are several other coinheritors who received the donation or testamentary gift in light of the purpose of the legal reserve of inheritance of the Civil Act and the purport of Article 1115(2) of the Civil Act, each of the other coinheritors shall be entitled to claim the return of the inherited property at the ratio of his own legal reserve of inheritance amount to the inheritor.

Therefore, in calculating the amount of legal reserve to be returned by the defendants, each of the above gifts against the defendants, the above gifts against the non-party 2, and the non-party 3 in the exercise of the plaintiffs' right to legal reserve of inheritance was invalidated within the extent of infringing the plaintiffs' legal reserve of inheritance. In case there are several donees, the donee's duty to return the donee's each legal reserve of inheritance is in accordance with the ratio of the amount of inheritance value. The defendants are obliged to return to each plaintiffs the entire amount of donations against the defendants of the above deceased and the non-party 2, and the non-party 3 to the above non-party 3 by the ratio of their respective amount of inheritance to the molecule.

However, if the Defendants calculated the amount to be returned to the Plaintiffs as the infringement amount according to the method of calculating the legal reserve of inheritance, it would result in the Defendants to pay more amount than the amount cited in the judgment below, but only the Defendants cannot be ruled disadvantageous to the Defendants in the instant case where only the Defendants appealed, and I point out this point without holding the judgment of the court below.

2. All appeals are dismissed, and all costs of appeal are assessed against the losing Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)