(a) Method of exercising the right to claim the return of legal reserve of inheritance and interruption of extinctive prescription therefrom;

(b) Where there are several co-inheritors who received a donation or testamentary gift, the other party to the claim for return of legal reserve of inheritance and the scope thereof;

C. Whether the application of Article 1114 of the Civil Act is excluded in the case of a claim for the return of legal reserve among co-inheritors

A. The right to claim the return of legal reserve of inheritance can be exercised by means of a declaration of intention to the other party in court or outside court. In this case, the declaration of intention is sufficient if it expresses the intention to claim the return of the testamentary gift or gift which has been infringed, and it does not need to specify the subject matter in detail, unlike exercising the right to claim the transfer of the property or the right to claim the transfer of the property resulting therefrom, and the progress of the extinctive prescription under Article 1117 of the Civil Code shall also be suspended

B. If there are several co-inheritors who received the donation or testamentary gift when the person entitled to the legal reserve of inheritance claims the return of the legal reserve of inheritance, the person entitled to the legal reserve of inheritance can claim the return according to the ratio of the amount exceeding their own legal reserve of inheritance to the inheritor who exceeds their own legal reserve of inheritance in light of the purpose of the legal reserve of inheritance and the purport of Article 1115(2) of the Civil Act.

C. In a case where there is a person among co-inheritors who has made a special benefit from the donation of the property from the inheritee, the provisions of Article 1114 of the Civil Code shall be excluded. Accordingly, the donation shall be included in basic property for calculating legal reserve of inheritance regardless of whether it was made between one year prior to the commencement of the inheritance or not.

(a)Article 1115(a) of the Civil Code;

Plaintiff

Defendant-Appellee et al., Counsel for the defendant-appellant

Incheon District Court Decision 92Na282 delivered on January 15, 1993

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

The grounds of appeal by Defendant’s attorney are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The right to claim the return of legal reserve of inheritance can be exercised by means of a declaration of intention to the other party in court or outside court. In this case, if the declaration of intention is to designate the testamentary gift or gift which has been infringed and indicate the intention to claim the return thereof, it is sufficient to specify the object, and unlike exercising the right to claim the registration of transfer or the right to claim the delivery of the object resulting therefrom, it is not necessary to specify the object in detail, and the progress of the extinctive prescription under Article 1117 of the Civil Code shall also

In the same purport, the court below is just in holding that the date on which the cause of the registration of transfer was stated in the annexed list 17 through 20 of the judgment below shall be deemed to be February 8, 1991, along with the remaining land, the date on which a copy of the complaint of this case stating the plaintiff's declaration of intent to claim the return of legal reserve of inheritance was delivered, and further, the right to claim the return of legal reserve of inheritance of each of the above land shall not be extinguished by prescription, and there is no error of law

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that each real estate listed in the attached list of the judgment below was owned by Nonparty 1, who was originally owned by Won and Defendant, and that Nonparty 1, who was not Australia, died on March 12, 1987. Although Nonparty 1, who was the head of Nam, Nonparty 2, Nonparty 3, who is South and North Korea, and was married with no withdrawal, Nonparty 1, who was the head of South and North Korea, but before the birth, the Defendant did not have an obligation to return the real estate portion on August 28, 1984 to Nonparty 1 through 12, and 17 through 20 on the land listed in the attached list of the above attached list of the court below, on the ground that Nonparty 1 received the above real estate portion on August 25, 1984 through 16, on the ground that each of the above real estate portion was transferred to Nonparty 2, 13 (the error in the judgment of the court below) to Nonparty 2, 1982 meters of inheritance and 14 meters of the inheritance.

However, Article 1113(1) of the Civil Act provides that legal reserve of inheritance shall be calculated by adding the value of the donated property at the time of commencing the inheritance of the inheritee to the value of the donated property at the time of deducting the total amount of the debt. Article 1115(1) of the same Act provides that when the person entitled to legal reserve of inheritance falls short of the legal reserve of inheritance due to the donation and testamentary gift provided in Article 1114 of the inheritee, the person entitled to legal reserve of inheritance may claim the return of the insufficient property to the extent of the shortage. Paragraph (2) of the same Article provides that when there are several persons who received the donation and testamentary gift, the person entitled to legal reserve of inheritance shall return it in proportion to the value of the testamentary gift, if there are several other co-inheritors who received the donation and testamentary gift, in light of the purpose of the legal reserve of inheritance system provided in the Civil Act and the purport of Article 1115(2) of the same Act.

Nevertheless, the court below did not examine whether the value of the property donated by the defendant, the non-party 2, and the non-party 3 evaluated the property as the basis for calculating the legal reserve according to the objective transaction price at the time of the commencement of the inheritance exceeds the legal reserve amount, and it does not interfere with the plaintiff's claim for the return of the legal reserve against the defendant. The court below determined that the defendant is liable for the plaintiff to implement the registration procedure for the transfer of ownership based on the plaintiff's claim for the return of the legal reserve with respect to one-eight portion of each of the real estate listed in the above attached list. Thus, the court below erred in the misapprehension of legal principles as to the calculation of legal reserve and the scope of the claim for the return of legal reserve against the co-inheritors, and it is obvious that such illegality affected the conclusion of the judgment, and therefore, it is therefore justified to point this out.

3. As to the third ground for appeal

Article 108 of the Civil Act, which applies mutatis mutandis to legal reserve of inheritance pursuant to Article 11118 of the same Act, provides, “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 those who have received the donation of property or testamentary gift from the inheritee, if the inheritance does not reach his/her share of inheritance, there is a share of inheritance to the extent of the shortage in property. This purport is to treat the inheritance property as the advance payment of the inheritance in order to ensure fairness among co-inheritors in cases where there is a special beneficiary who received a donation of property or testamentary gift from the inheritee among co-inheritors, and to consider it in calculating the specific share of inheritance (see Supreme Court Decision 94Da16571 delivered on March 10, 195). Therefore, Article 1114 of the Civil Act, in cases where there is a person who received special profits from the inheritee by donation of property from the inheritee among co-inheritors, the donation shall be excluded from its application, and therefore, it shall be included in basic property for calculating legal reserve of inheritance

The judgment of the court below to the same purport is just, and there is no reason to argue that the judgment of the court below contains an error of law such as theory of lawsuit.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Sung-sung (Presiding Justice)