Plaintiff (Law Firm Han-soo, Attorneys Lee Sun-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Young-young et al., Counsel for the defendant-appellant)

March 25, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. The Plaintiff, with the bank account in the name of the deceased Nonparty 1 on February 12, 2010, transferred KRW 5 million on five occasions on March 5, 2010, KRW 30 million on five occasions on March 5, 2010, and KRW 7.4 million on two occasions on March 9, 2010, and the borrower Nonparty 1, the borrower Nonparty 1, and the borrowed Nonparty 50 million on March 5, 2010 (hereinafter “the instant loan certificate”).

B. On December 17, 2011, the deceased non-party 1 died, and his inheritors, including the Defendant, filed on January 26, 2012 a waiver of inheritance with the Suwon District Court 2012Ra145, which was the deceased non-party 1’s renunciation of inheritance, and received a judgment on March 14, 201.

C. Meanwhile, on January 30, 2012, after the renunciation of inheritance, the Defendant: (a) delegated to Nonparty 2, the representative director of the Korea Transportation Agency on the part of January 30, 2012, the fact that the deceased Nonparty 1 was either scrapped or selling six cargo vehicles which he actually owned by the deceased Nonparty 1; and (b) paid KRW 2,730,000 to Nonparty 2 as the above scrapped and the sales price; and (c) on February 29, 2012, the Defendant was jointly owned by the deceased Nonparty 1 and/or 1/2 shares (vehicle number omitted); and (d) completed the registration of transfer of ownership on December 26, 2011 as to the deceased Nonparty 1-2 shares due to inheritance.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Gap evidence Nos. 8, 9, Eul evidence Nos. 1, 6, and 10 (including branch numbers), the purport of the whole pleadings

2. Summary of the parties' arguments

The plaintiff has lent KRW 50 million to the deceased non-party 1. Since the above non-party 1 died on December 17, 201, the defendant asserts that the deceased non-party 1's wife is jointly and severally liable for the debt of this case to the plaintiff under Article 832 of the Civil Act with the deceased non-party 1 to purchase the automobile of the defendant's family or to raise living expenses, etc.

Accordingly, the defendant did not borrow money from the plaintiff as alleged by the plaintiff, and even if the deceased non-party 1 borrowed money from the plaintiff, the act of borrowing money from the plaintiff does not constitute a juristic act related to ordinary family affairs, and as long as the defendant reported the renunciation of inheritance on January 26, 2012 and reported on March 14, 2012, the defendant did not have an obligation to pay the above money to the plaintiff.

As to the Defendant’s assertion of renunciation of inheritance, the Plaintiff again asserts that, although the Defendant renounced inheritance, the Plaintiff disposed of or fraudulently consumed the deceased Nonparty 1’s inherited property before and after the renunciation of inheritance, the simple approval under Article 1026 subparag. 1 or 3 of the Civil Act was achieved.

3. Determination

A. Whether the Plaintiff’s loan to the deceased Nonparty 1

According to the result of the appraisal of the seal imprint by Nonparty 3, the fact that the seal imprint affixed on the seal imprint of this case is identical to the deceased Nonparty 1’s seal imprint. As such, it is actually presumed that the act of affixing the seal is made by the deceased Nonparty 1’s intention, who is the title holder (the authenticity of seal imprint), and it is presumed that the entire seal imprint was made in accordance with Article 358 of the Civil Procedure Act.

In regard to this, the defendant alleged that the loan certificate of this case cannot be ruled out that it was unrelated to this case or that it was forged by the plaintiff. As seen earlier, the plaintiff transferred a total of KRW 42.4 million (=5 million + + KRW 30 million + KRW 7.4 million) to the bank account in the name of the deceased non-party 1. In light of the relationship between the plaintiff and the non-party 1 who is the employee and the deceased non-party 1, the defendant's argument that the loan certificate of this case is unrelated to this case cannot be accepted. Meanwhile, the defendant's assertion that the loan certificate of this case is unrelated to this case is not prepared against the intention of the deceased non-party 1 or the deceased non-party 1 on behalf of the deceased non-party 1 as alleged by the plaintiff cannot be ruled out, and there is no evidence to prove that the loan certificate of this case was prepared without the intention of the deceased non-party 1 or the deceased non-party 1 on behalf of the deceased non-party 1.

On the other hand, as long as the authenticity of the loan certificate of this case, which is a disposal document, is recognized, the court should, in principle, recognize the existence and contents of the expression of intent in accordance with the language stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement. Even if the evidence submitted by the defendant is examined, it is insufficient to deem that there is a counter-proof to deny the contents of the loan certificate of this case. Accordingly, it is difficult to recognize that the deceased non-party 1 borrowed 50 million won from the plaintiff according to the contents of the loan certificate of this case.

B. Determination as to the Plaintiff’s claim based on the Plaintiff’s daily home life

The term "legal act with respect to one's own family" under Article 832 of the Civil Act refers to a legal act with respect to an ordinary business required in the community of the married couple. The specific scope is not only the social status, property, revenue, and ability of the married couple community, but also the community's custom, which is the place of living of the married couple. However, in determining whether the specific legal act is a legal act with respect to one's ordinary family affairs, it should be determined by considering not only the internal situation of the married couple community or the individual purpose of the act, but also the objective type, character, etc. of the legal act (see Supreme Court Decision 2000Da8267 delivered on April 25, 200). Since there is no evidence supporting that the loan in this case was used for the daily life of the defendant's family members, the argument of the plaintiff in this part is without merit.

C. Determination as to the plaintiff's claim based on inheritance against the deceased

(1) Article 1026 of the Civil Act provides that "where any of the following grounds exists, an inheritor shall be deemed to have made simple approval," and subparagraph 1 provides that "When an inheritor conducts a disposal act on inherited property," subparagraph 3 provides that "if an inheritor conceals, wrongfully consumes, or intentionally fails to enter in the inventory after a qualified acceptance or renunciation is made," subparagraph 1 provides that "Where an inheritor disposes of inherited property before a qualified acceptance or renunciation is made, it shall apply only to the case where an inheritor disposes of inherited property before a qualified acceptance or renunciation is made, and where an inheritor disposes of inherited property after a qualified acceptance or renunciation is made, it shall be deemed that an inheritor simply approves an inherited property only in cases where an inheritor is liable for damages to an inheritance obligee or other inheritor, and further, "non-consumption of inherited property" provided for in subparagraph 3 of the same Article means an act that loses its property value by means of via via a viable, without any justifiable reason (see Supreme Court Decision 2003Da358636, Mar. 22, 2004).

(2) First, as to the Plaintiff’s assertion that the Defendant either disposed of the instant vehicle or fraudulently consumed the instant vehicle and thus obtained statutory simple approval pursuant to Article 1026 subparag. 1 or 3 of the Civil Act, the Defendant filed a report on the renunciation of inheritance on January 26, 2012, but completed the registration of transfer of the deceased Nonparty 1-2’s shares on February 29, 201 due to inheritance on December 26, 2011, the Defendant’s transfer of the deceased Nonparty 1-1/2 shares on the instant automobile to the deceased Nonparty 1-2 shares on the register of automobiles as well as on December 26, 2011, it is difficult to view that the disposal date constitutes the disposal of the inherited property under the name of Nonparty 1-2 shares on the following grounds: (a) it is difficult to view that the Defendant’s transfer of the value of the instant automobile to the inheritance obligee under the name of Article 1026 subparag. 1 or 26 of the Civil Act as the disposal date of the instant automobile.

Therefore, the above part of the plaintiff's assertion is without merit.

(3) Next, we examine the Plaintiff’s assertion that there is a ground for statutory simple approval pursuant to Article 1026 subparag. 3 of the Civil Act after the Defendant scrapped or disposed of six cargo vehicles owned by the deceased non-party 1, and then wrongfully consumed the proceeds of the disposal. While the Defendant filed a report of renunciation of inheritance on January 26, 2012, the Defendant, on January 30, 2012, ordered the non-party 2 to scrap or sell six cargo vehicles owned by the deceased non-party 1, and then received KRW 27,30,00 from the non-party 2 on February 6, 2012. However, in order to constitute an illegal consumption of inherited property under Article 1026 subparag. 3 of the Civil Act, it is difficult to view that the Defendant’s act did not constitute an unlawful consumption exceeding the mere disposal act, and thus, it is difficult to view that the Defendant received the above money from the non-party 271,200,000 won in total after being discharged by inheritance.

Therefore, the plaintiff's above part of the claim is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendant of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Choi Su-jin