(영문) 대법원 2015.6.23.선고 2014다50913 판결

1. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning based on the evidence of employment, and determined that the deceased's total 10,000 shares of G (hereinafter referred to as "non-party company") was entrusted in the name of the defendant before the death, and thus, the deceased's property is substantially inherited property. The defendant, upon the death of the deceased, exercised his authority as a shareholder by asserting that the above shares were not inherited property but as the defendant's own property, and by starting the management of the non-party company, acquired the right to dispose of all property of the deceased by asserting that the above shares were owned as the defendant, and that such act constitutes "dispositive act on inherited property" as stipulated in Article 1026 subparagraph 1 of the Civil Act, and thus

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. Article 1026 of the Civil Act provides that "where any of the following grounds exists, an heir shall be deemed to have made simple approval," and Article 1026 of the Civil Act provides that "where an heir conducts a disposal act in respect of inherited property under subparagraph 1, the heir shall be deemed to have made a disposal act in respect of inherited property." Thus, Article 1026 subparagraph 1 of the Civil Act applies when an heir disposes of inherited property before a qualified acceptance or renunciation is made, knowing the commencement of inheritance on his/her behalf after the commencement of inheritance (see Supreme Court Decision 2003Da63586, Mar. 12, 2004). "Disposition" here includes a factual act that changes the current state or nature of property and a legal act that causes a change in the property, or a preservation and management act

B. According to the reasoning of the lower judgment and the evidence employed by the lower court, the deceased was actually engaged in the operation of the non-party company and died on March 31, 2012; the Defendant, the inheritor, reported the renunciation of inheritance to the Daegu Family Court on May 18, 2012 and received a judgment on acceptance of the report on the renunciation of inheritance on the 30th day of the same month; the deceased, the 4,000 shares out of the total shares of the non-party company, 3,000 shares of the deceased and the 4,000 shares in the name of the non-party H were registered respectively in the name of the non-party H; on June 1, 2010, the shares in the name of the non-party I were transferred to the non-party I, and the 3,000 shares in the name of H were transferred to the non-party I on August 31, 201, and the Defendant was fully registered in the name of the non-party company’s director.

C. Examining the above facts in light of the legal principles as seen earlier, since 10,000 shares of the non-party company were trusted in the name of the defendant before the death of the deceased, even if they actually belong to the inherited property of the deceased, the defendant cannot be deemed to have engaged in any act of disposal of the shares, which are inherited property, since he/she continues to hold the shares registered in his/her name even after the inheritance commenced. Even if the deceased actually managed the non-party company before the death, and the defendant was merely a nominal director, even if he/she was not a nominal director, he/she bears the duty of loyalty and duty of care to the company (see Supreme Court Decision 2008Da94097, May 14, 2009). Since the defendant commenced the management of the non-party company after the death of the deceased, such act does not constitute an act of disposal of the shares, which are inherited property. Furthermore, even if examining the record, it cannot be found that the defendant exercised shareholder's right to dispose of shares beyond the preservation

Nevertheless, the lower court determined otherwise by deeming the Defendant to have performed a disposal act on the deceased’s inherited property before the renunciation of inheritance, and determined that the Defendant was considered to have granted a simple approval on the inheritance on the deceased’s property. In so determining, the lower court erred by misapprehending the legal doctrine on the disposal of inherited property under Article 1026 subparag. 1

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.