Whether a person may seek a partition of any inherited property, the ownership transfer of which has been made on the grounds of inheritance, for which the heir's joint ownership transfer is not a procedure for division of inherited property as prescribed by the Family Litigation Act (negative)

The co-ownership relationship of inherited property is different from the general co-ownership relationship in terms of the co-ownership with a provisional character to maintain the current state of inherited property until each inheritor becomes a sole ownership through division, and the legal doctrine of division also differs from the common co-ownership. Therefore, even if the ownership transfer registration has been completed due to the heir's co-ownership as to inherited property in a situation where the co-inheritors fail to reach agreement on the division of inherited property or cannot reach such agreement itself, the division of inherited property shall be determined by the family court's adjudication in accordance with the Family Litigation Act, as provided by the Family Litigation Act. The ordinary court, like the common co-ownership lawsuit, shall not be determined by a judgment in accordance with the ordinary litigation procedure.

Articles 268, 269, and 1013(2) of the Civil Act; Articles 2(1) and 46 of the Family Litigation Act; Article 3 subparag. 2 of the Rules on the Jurisdiction of Property in Civil and Family Litigation

Plaintiff

Defendant 1

Defendant 2

Daegu District Court Decision 2007Kadan810 decided June 11, 2008

November 18, 2008

1. Revocation of the first instance judgment.

2. The case shall be transferred to the Daegu District Court Panel Division for Residential Support.

The judgment of the court of first instance is revoked. It shall be distributed in the proportion of 270/90 to the plaintiff, 270/90 to the defendant 1, 270/90 to the defendant (appointed party; hereinafter "the defendant") 2, 111/90 to the Appointee 2, 101/90 to the Appointer 301/90, 900 to the Appointer 4/90 to the Appointer, and 4/90 to the Appointer.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in Gap evidence No. 1.

A. The deceased non-party 1, the plaintiff, and the defendant 1 are children of the deceased non-party 2 (the deceased on October 23, 1987), and the defendant 2 is the wife of the deceased non-party 1 (the deceased non-party 1 died at around 1990 and re-born at around 2002), 2, 3, and 4 are children between the defendant 2 and the deceased non-party 1.

B. On July 5, 1971, the registration of ownership transfer was completed in the name of the deceased non-party 2, the deceased non-party 2, the deceased non-party 1, and the deceased non-party 3 (the deceased non-party 2's wife, November 15, 1998) with respect to the instant real estate on September 13, 2005. The registration of ownership transfer was completed in the names of the plaintiff, the defendants, and the designated parties on September 13, 2005 (each co-ownership share of the plaintiff, the defendants, and the designated parties is 270/900, Defendant 1 was 270/90, Defendant 270, Defendant 211/90, Defendant 200, Defendant 3 was 101/90, 290/90, and 290/409).

2. The plaintiff's assertion

The plaintiff seeks that the plaintiff shall sell the real estate of this case owned by the plaintiff, the defendant, and the captain at the above ratio of shares to sell the real estate at auction and distribute the proceeds from sale at the corresponding ratio of their shares.

3. Determination on the legitimacy of a lawsuit

The method of resolving the co-ownership relationship under the current law is, in addition to the ordinary co-owned property partition lawsuit procedure under Article 269(1) of the Civil Act, a separate procedure for the division of inherited property under Article 1013(2) of the Civil Act for resolving the co-owned relationship due to inheritance. However, the common co-ownership relation is different from the common co-ownership relation in terms of co-ownership with a provisional character to maintain the phenomenon of inherited property until each inheritor becomes a sole ownership through division, and the legal principle of division also differs from the common co-owned property. Therefore, even if the ownership transfer registration is completed due to the inheritance of inherited property, even if the co-inheritors did not reach an agreement on division of inherited property or cannot reach such agreement, the division of inherited property shall be determined by the family court's adjudication through the division of inherited property as prescribed by the Family Litigation Act, and the ordinary court, like the common co-owned property partition lawsuit, shall not be determined by a judgment in accordance with the ordinary litigation procedure.

As seen earlier, it is reasonable to regard the Plaintiff’s instant claim as a claim for division of inherited property under Article 1013(2) of the Civil Act and treat it as a claim for division of inherited property, in light of the following: (a) the Plaintiff’s claim of this case is practically seeking the division of inherited property, and only the Defendants and designated parties, who are other successors maintaining the sharing relationship until now, are seeking to resolve the sharing relationship.

Therefore, the claim of this case is seeking a disposition concerning the division of inherited property as stipulated in Article 2(1)(b)(e) of the Family Litigation Act among the non-litigation cases, and the examination and trial thereof are subject to the jurisdiction of the family court (Article 2(1) of the Family Litigation Act). The non-litigation cases such as the disposition concerning the division of inherited property fall under the jurisdiction of the collegiate division of the family court in the location of the other party’s general forum (main sentence of Article 46 of the Family Litigation Act and Article 3 subparag. 2 of the Rules on the Jurisdiction of Property in Civil and Family Litigation). Ultimately, the collegiate division of the Daegu District Court with jurisdiction over the domicile

4. Conclusion

Therefore, this case shall be transferred to the Daegu District Court's resident support collegiate Panel, which is the competent court, and the judgment of the first instance is unfair because it is improper to judge the propriety of the claim on the merits without transferring it to the competent court. Therefore, without examining the grounds for appeal of the plaintiff, the judgment of the first instance is revoked and the decision is delivered to the Daegu District Court's resident support collegiate Panel Division which is the competent court pursuant to Article 419 of the Civil Procedure Act

Judges Jinsung (Presiding Judge)