[1] Whether a claim for division of inherited property may be made where the liquidation procedures following the qualified acceptance are not completed (affirmative)

[2] In a case where an attorney-at-law in charge of authentication at a joint law office of notary public prepares a notarial deed at the commission of an attorney-at-law belonging to the same office, whether he/she is unable to perform his/her duties on the ground that he/she is commissioned by an attorney-at-law belonging to the same office

[3] Whether an employee of a notary public or a client or an assistant of a notary public may become a witness in a will by a notarial deed (negative in principle)

[4] In a case where Gap, an inheritee Gap, prepared a testamentary gift of land and buildings to Eul, and a notary public affixed his seal and affixed his seal on the said notarial deed as a witness, the case holding that the court below erred by misapprehending the legal principles on recognizing the qualification as a witness of justice and recognizing that the notarial deed is valid

[1] The Civil Code does not explicitly stipulate that the qualified acceptance procedure should be prior to the procedure of the division of the inherited property, and it is difficult to deem that the division of the inherited property is impossible or unfair among the co-inheritors due to the division, because some of the co-inheritors have made the qualified acceptance. If there is a dispute over the scope of the inherited property subject to the division of the inherited property among the co-inheritors, it is apprehended that the liquidation procedure pursuant to the qualified acceptance would not be performed properly. If it is possible to determine the scope of the inherited property subject to division in a lump sum through the procedure of the claim for the division of the inherited property, it is necessary to protect the inheritance obligee or facilitate the liquidation procedure.

[2] In a case where an attorney-at-law in charge of authentication at a joint law office of notary public prepares a notarial deed at the commission of an attorney-at-law belonging to the same office, his/her duties cannot be performed solely on the ground that he/she is commissioned by an attorney-at-law belonging to the same office, except where there are grounds provided in Article 21 of the former Notary Public Act (amended by Act No. 9416 of Feb.

[3] Article 1068 of the Civil Code provides that the testator's will by a notarial deed shall accept the tenor of the will before a notary in the presence of two witnesses, and the notary shall write down and read it, and then the testator and the witness shall respectively sign or affix their seals after approving the accuracy thereof. Article 1072(2) of the Civil Code provides that a will by a notarial deed shall not be a witness in the case of a will by a notarial deed, and Article 33(3)6 and 7 of the former Notary Public Act (amended by Act No. 9416 of Feb. 6, 2009) provides that a disqualified person pursuant to the Notary Public Act shall not be a witness. In light of this, a notary or an employee of the client or an assistant of the notary may not be a witness in a notarial deed except in the case where the notary or an assistant of the client requests the presence of the witness as a witness.

[4] In a case where Gap, an inheritee Gap, prepared a testamentary deed to legacy land and buildings to Eul, and a notary public Byung-he signed and sealed the employees of the joint law office Byung as witness on the above notarial deed, the case holding that the court below erred by misapprehending the legal principles in recognizing the qualification as a witness and recognizing the validity of a notarial deed, inasmuch as Gap, who is a notary public or client's employee, or assistant to a notary public, did not demand the presence of the client Gap as witness under Article 33 (3) of the former Notary Public Act (amended by Act No. 9416 of Feb. 6, 2009) and requested that he be a notary public or client's employee, or notary public's assistant to a notary public,

[1] Articles 1013 and 1028 of the Civil Act / [2] Article 21 of the former Notary Public Act (amended by Act No. 9416 of Feb. 6, 2009) / [3] Articles 1068 and 1072 (2) of the Civil Act, Article 33 (3) 6 and 7 of the former Notary Public Act (amended by Act No. 9416 of Feb. 6, 2009) / [4] Article 33 (3) of the former Notary Public Act (amended by Act No. 9416 of Feb. 6, 2009)

[3] Supreme Court Decision 91Da45509 delivered on March 10, 1992 (Gong1992, 1295)

Appellant 1 and two others (Law Firm Apex, Attorneys Ansan-si et al., Counsel for the plaintiff-appellant)

Other party (Attorney Lee Dong-soo et al., Counsel for defendant-appellee)

Seoul High Court Order 2010B61 dated October 31, 2011

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

1. As to the grounds for reappeal of the other party

A. As to the first and second grounds for reappeal

The Civil Code does not explicitly stipulate that the qualified acceptance procedure should be prior to the inherited property division procedure, and it is difficult to view that the division of inherited property is impossible or unfair among co-inheritors due to the division, because some of co-inheritors have made a qualified acceptance, and in the event there is a dispute between co-inheritors as to the scope of inherited property subject to the division of inherited property, it is apprehended that the liquidation procedure pursuant to the qualified acceptance would not be properly implemented if there is a concern that the scope of inherited property subject to division is not possible. In light of the above, it is necessary to determine the scope of inherited property in a lump sum through the procedure of the claim for division of inherited property in order to protect the inheritance obligee or to facilitate the liquidation procedure.

In the same purport, the court below is just in rejecting the other party’s assertion that the claim for the division of the inherited property of this case is unlawful since the liquidation procedures pursuant to the qualified acceptance are not completed, and there is no error by misapprehending the legal principles on the relationship between the qualified

C. As to the third ground for reappeal

According to the records, the claimant filed a lawsuit against the other party for a claim for the return of legal reserve of inheritance and the court of first instance is pending in the current civil procedure. Since the case for the claim for division of inherited property is subject to the exclusive jurisdiction of the family court as the non-contentious family non-litigation case belonging to the category E of Article 2(1)2(b) of the Family Litigation Act, the court in the case for the claim for division of inherited property did not err in failing to concurrently and concurrently

2. As to the grounds for reappeal by the claimant

A. As to the first ground for reappeal

(1) Article 21 of the former Notary Public Act (amended by Act No. 9416 of Feb. 6, 2009; hereinafter referred to as the "former Notary Public Act") provides that where a notary public is the spouse or relative of a client, his agent or a person interested in the matter commissioned (Article 1; hereinafter the same shall apply), when a client or his agent is the legal representative (Article 2 subparagraph 2), when a client or his agent has an interest in the matter commissioned (Article 3), when a notary public is an agent or assistant concerning the matter commissioned (Article 4), or when a notary public is an agent or assistant concerning the matter commissioned (Article 2, 6, 12, 13, and 13 of the former Notary Public Act concerning the duties of the notary public, he shall not perform his duties only on the ground that he is not an attorney-at-law belonging to the office affiliated with the notary public (Article 2537, Jan. 27, 2005).

(2) On December 11, 2006, the court below acknowledged that the notary public prepared a testamentary deed (number omitted) of 2006 (hereinafter referred to as the "notarial deed of this case") with the content that the non-party 1, an attorney at law in charge of authentication at a subordinate law office of this case (hereinafter referred to as the "joint law office of this case"), upon the commission of the inheritee, who is an attorney at the law office of this case, deliver 1/2 of the land and building belonging to the same law office of this case to the other party who is his wife, and deliver 1/2 of the notarial deed of this case (hereinafter referred to as the "notarial deed of this case"), and rejected the claimant's assertion that the notary public of this case cannot be deemed to have any grounds for exclusion provided for in Article 21 of the former Notary Public Act merely because the notary public is a member of the joint law office of this case.

In light of the above legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the grounds for exclusion under Article 21 of the former Notary Public Act.

B. As to the third ground for reappeal

Examining the reasoning of the order of the court below in light of the records, it is not sufficient to recognize that the other party received the gift from the inheritee or the amount equivalent to the acquisition fund or the sale price thereof from the inheritee as to each real estate held by the appellant in the judgment of the court below, and there is no other evidence to acknowledge it. In so doing, the court below did not err by exceeding the bounds of the principle of free

C. As to the second ground for reappeal

(1) Article 1068 of the Civil Act provides that a will by notarial document shall be made by a testator before a notary in the presence of two witnesses, and a notary shall be made to write down and read it, and then the testator and the witness shall approve the accuracy thereof, and Article 1072(2) of the Civil Act provides that a testator shall not be a disqualified person pursuant to the Notary Public Act in a will by notarial document, and Article 33(3)6 and 7 provides that an employee of the notary public or the client's employee or assistant of the notary shall not be a witness unless the testator demands the presence of the client in a notarial document (see Supreme Court Decision 91Da4509 delivered on March 10, 1992). In light of this, it is reasonable to deem that a notary, his employee or assistant of the client cannot be a witness in a will by notarial document unless the client demands the presence of the witness as a witness (see Supreme Court Decision 91Da45509 delivered on March 10, 1992).

(2) However, according to the facts acknowledged by the court below, the non-party 2 who participated as a witness in the will of this case is an employee of the joint law office of this case. Thus, the non-party 2 is highly likely to be an employee of the notary public or the client or assistant of the notary public stipulated in Article 3(3) of the former Notary Public Act, and in such case, the client cannot be a witness in the will of this case unless the client requested that he be a witness.

Nevertheless, the court below held that the notarial deed of this case is valid on the grounds that there is no separate provision that limits the qualification of a witness under the former Notary Public Act and no provision that limits the qualification of a witness shall apply mutatis mutandis to the former Notary Public Act, and that the notarial deed of this case is valid. It erred by misapprehending the legal principles on the qualification of a witness in a will by notarial deed, which led

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)