[1] Where part of the right of the real estate acquired by the decedent through sale belongs to another person, the seller's warranty liability and the scope of inherited property

[2] The case holding that if a land sales contract concluded on a real estate owned by the inheritee was finally null and void in relation to land transaction permission prior to the commencement of inheritance, such real estate shall be included in the inherited property, and the obligation to return the purchase price shall also be included in the obligation to deduct from

[3] The case holding that the sale price, which took place three years and eight months before the commencement date of the inheritance, may be deemed as the market price at the time of the commencement of the inheritance

[1] In a case where a part of the right which was the object of sale belongs to another person and it becomes impossible for the bona fide buyer to acquire the right and transfer it to the buyer, the bona fide buyer may claim for reduction of the price at the rate of the warranty liability to the seller, and if there is any damage not compensated, the damages can also be claimed. If the predecessor did not know that part of the real estate which was the object of sale at the time of the commencement of the inheritance does not belong to the seller, the inheritee constitutes a bona fide buyer. Therefore, the inheritee can claim for return of the reduced price and compensation for damages from the seller. Article 9 (1) of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994) provides that the value of the inherited property shall be based on the current status at the time of the commencement of inheritance. Thus, the ownership of part of the real estate which was the object of inheritance at the time of the commencement of the inheritance shall be included in the right to claim reduction of the price and the right to claim damages which the predecessor

[2] The case holding that since the contents of a sales contract concluded between the buyer and the buyer on the real estate owned by the decedent fall short of the criteria for permission under the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of Aug. 5, 1993), and it can be said that the sale contract was objectively null and void from the time of the sale contract, and the seller clearly expresses his intent to refuse to perform the duty to cooperate due to the issue of the transfer income tax, and the buyer and the buyer were neglected for a long time without filing an application for land transaction permission, at least the time of the death of the decedent, the decedent was obligated to return the purchase price already received from the buyer as unjust enrichment, and thus the above real estate should be included in inherited property, and the obligation to return the sale price shall also be included in the obligation to deduct from inherited property.

[3] The case holding that it is reasonable to view the sale price of the above real estate as its market price at the time of commencing the inheritance on the ground that the sale price under the sale contract was made according to the general transaction and the sale price under the sale contract was properly reflected in the objective exchange value at that time, and that the sale contract was eventually invalidated in connection with land transaction permission, although the above sale contract was made at least three years and eight months before the commencing date of the inheritance, since the sale price at the time of the transaction of the above real estate was made at the time of the above sale contract did not have a big difference to the extent that the unit price at the time of the transaction of the above real estate was less than a little amount of the unit price under the above sale contract, and in the case of a supplementary assessment method of individual land price, the price at the above real estate was less than 41% of the above sale price at the time of the inheritance, and there was no special circumstance to deem that there was a decline in the market price or a change in land

[1] Article 572 (1) and (3) of the Civil Act, Article 4 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4805 of Dec. 22, 1994) and Article 9 (1) (see current Article 60 (1) of the Inheritance Tax and Gift Tax Act) / [2] Article 21-3 (1) and (7) of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of Aug. 5, 1993), Article 21-4 (1) 2 (c) and 5 of the Inheritance Tax and Gift Tax Act, Article 4 (1) (see current Article 14 (1) of the Inheritance Tax and Gift Tax Act), and Article 9 (1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 4805 of Dec. 22, 194), Article 9 (1) of the former Inheritance Tax and Gift Tax Act (see current Article 16 (19) of the Inheritance Tax and Gift Tax Act)

Plaintiff 1 and one other (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Head of Mapo Tax Office

Seoul High Court Decision 96Gu43739 delivered on April 7, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the first proposal

After finding the facts as indicated in its reasoning, the lower court: (a) deemed that the Defendant’s right to sell and sell the pertinent real estate was KRW 30,000,000,000, which was registered in the name of Nonparty 1 at the time of August 15, 1994, and KRW 19,92, and KRW 21,338,00 ( Address 1 omitted); (b) was divided into KRW 41,30,00,00; (c) on October 10, 1989, KRW 30,00,00,000, KRW 30,000,00,000; and (d) was not registered in the name of Nonparty 2 at the time of commencing the inheritance; (d) was not registered in the name of Nonparty 1; (e) KRW 392,635,00,000; and (e) determined that the portion of the instant real estate was not registered in the name of Nonparty 2 at the time of inheritance.

However, in a case where a part of the right which was the object of sale belongs to another person and the seller becomes unable to acquire the right and transfer it to the buyer, the bona fide buyer may claim for reduction of the price at the ratio of the warranty liability to the seller, and if there is any damage not compensated, the damages can also be claimed (see Article 572 of the Civil Act). If the inheritee did not know that the ownership of the above 9,380 square meters portion among the first real estate of this case, which was the object of sale at the time of the above sale and purchase, belongs to the bona fide buyer, who is the seller, and therefore, the inheritee is entitled to claim for return of the reduced price to the non-party 2 as well as compensation for the damage incurred therefrom.

In addition, Article 9(1) of the former Inheritance Tax Act (amended by Act No. 4805 of Dec. 22, 1994) provides that the value of inherited property shall be based on the current status as at the time of the commencement of the inheritance. The above 9,380 square meters among the real estate 1 of this case shall not be transferred because it belongs to another person, and thus, the right to claim price reduction and the right to claim damages that the decedent acquires is included in the inherited property of this case. If the total value of each of the above claims is assessed as at the time of the commencement of the inheritance of this case as at the time of the commencement of the inheritance of this case, it shall be reasonable to view that the appraised value of the above 9,380 square meters as at the time of the commencement of the inheritance of this case

Nevertheless, the court below erred by misapprehending the legal principles as to the seller's liability for warranty and the scope of inherited property, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment, and the ground of appeal pointing this out is justified.

2. As to ground of appeal Nos. 2 and 3

A. Basic facts found by the court below

(2) On December 13, 190, the lower court: (a) concluded a sale contract with Nonparty 1 and Nonparty 4 for the purpose of return of the purchase price of the instant land owned by Nonparty 1 and Nonparty 4; (b) concluded a sale contract with Nonparty 1 and Nonparty 4 for the purpose of return of the instant land owned by Nonparty 1 and KRW 12,575 square meters for the purpose of return of the instant real estate owned by Nonparty 1 and KRW 40 for the purpose of return of the instant real estate owned by Nonparty 5 and KRW 90 for the purpose of return of the instant real estate owned by Nonparty 1 and KRW 40 for the purpose of return of the instant real estate owned by Nonparty 2; (c) concluded a sale contract with Nonparty 1 and KRW 90 for the purpose of sale and purchase of the instant real estate owned by Nonparty 4 and KRW 90 for the purpose of sale and purchase on the instant real estate owned by Nonparty 1 and KRW 1,702 for the purpose of sale and purchase of the instant real estate.

B. As to Chapter 2

Based on the above facts, the court below held that the above sales contract for the real estate No. 2 of this case concluded between the decedent and the non-party No. 4 of this case constitutes miscellaneous land among them: ① 17,90 square meters in total; ② 12,575 square meters in total for land + 22% in total, and 3,967 square meters in site area, which is merely 3,967 square meters in size; thus, it constitutes an exception to permission under Article 21-4 (1) 5 of the former Act on the Management and Utilization of the National Territory (amended by Act No. 4572 of Aug. 5, 1993), which constitutes "where the area is deemed inappropriate for the purpose of using the land as the purpose of using the sale price of the land," and determined that the sales contract of this case cannot be deemed as null and void since it falls short of the criteria for permission, and thus, it cannot be deemed as null and void from the sale contract to the non-party No. 4 of this case's. 94 of this case.

As examined in comparison with the evidence of the record, the recognition and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the obligation to be excluded from the taxable value of the inherited property, by misapprehending the law of evidence.

In addition, the above agreement between the plaintiffs and the non-party 4 on August 12, 1997 with respect to the repayment of the purchase price repayment obligation inherited from the decedent, it is reasonable to interpret that the plaintiffs entered into a new sales contract with the plaintiff and the non-party 4 with respect to the non-party 4 with respect to the non-party 4 of the second real estate of this case with respect to the non-party 530,000,000 won for the amount of the purchase price, which is 91,812 square meters for the commercial land divided on the land.

The grounds of appeal are rejected.

C. As to the third ground for appeal

Furthermore, with regard to the Defendant’s assertion that the sale price under the above sales contract may be deemed to be the market price at the time of the commencement of the inheritance of the second real estate of this case, since the sale price under the above sales contract may be deemed to be the market price at the time of the commencement of the inheritance of this case, the lower court determined that, in order to make the sale price at the time of the commencement of the inheritance of this case, which was made from August 15, 1994 to December 13, 1990, which was about three years and eight months before the commencement of the inheritance of this case, the sale price at the time of the commencement of the inheritance of this case should be objectively considered to reflect the general and normal exchange price at the time of the commencement of the inheritance of this case, and it is difficult to find that there was no change in the sale price at the time of the above sales contract and the commencement of the inheritance of this case, the lower court did not have any evidence to acknowledge that the sale price at the time of the commencement of the inheritance of this case was to be calculated differently from the market price at the above 194.2.

However, even according to the facts established by the court below, the sales contract of this case was concluded between the decedent 1 and the non-party 4 on the condition that the sale price on the sale contract of this case was appropriately reflected in the objective exchange value at that time. It is not different because the sale contract of this case was finally invalidated in connection with the land transaction permission. However, even if the sale contract of this case was concluded on or before about 3 years and 8 months from the commencement date of the inheritance of this case, the sale price of this case was 73,126 won per piece of land at the time of the commencement of the inheritance of this case to the non-party 4 on December 13, 1990, the sale price of this case was 00,000 won per 1,40,000 won per 70,000 won per 97,000 won per 40,000 won per 97,000 won per 1,693).

Nevertheless, the court below calculated the value of the second real estate based on the supplementary assessment method, on the ground that the sale price cannot be deemed as the market price at the time of the commencement of the inheritance, based on the officially assessed individual land price, which is a supplementary assessment method, erred by misapprehending the legal principles as to the assessment method of inherited property, which affected the conclusion of the judgment, and the ground of appeal

3. Conclusion

Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)