[1] Whether the deep-sea forest has the nature of the deep-sea forest as a gold-sea forest even after disposing of the base of the grave that dynasiums the dynasty (affirmative)

[2] In a case where a property to be used, such as gold and forest land, has been transferred to another heir who is not the owner of the property, whether it is included in the general inherited property (negative)

[1] The reason why the property for use such as Geumyang Forest is excluded from the object of general inheritance and is subject to special inheritance is that the property for use is jointly inherited or divided equally is contrary to the custom of the Republic of Korea and the public sentiment focusing on the inheritance by ancestor worship and the inheritance by family. Thus, in light of the purport of the above system, since the base of the graves able to dysland has been transferred to a third party, the forest still has the nature of the dysland until the relocation of the grave actually, even in case where the graves dysland had been transferred to a third party, the forest still has the nature of the dysland, so if the deceased deceased while the decedent was unable to move the tomb even after the ownership of the land including the base of the graves dysland had been transferred by land expropriation, the forest still has the nature of the dysland as a gold-sea forest.

[2] If a certain piece of land is a gold-producing forest or farmland which is a grave land under Article 1008-3 of the Civil Code, the land within the scope stipulated by the provisions shall be succeeded to the ownership alone by the third party. In this case, if the third party is a son, the third party shall be entitled to the ownership, except in special circumstances where it is impossible to maintain the status of the person presiding over the third party. In that case, even if the ownership transfer registration has been made in the name of another heir, etc., even if the ownership transfer registration was made in the name of the other heir, etc., it is merely a registration of invalidation, and it is merely a registration of ownership transfer, and thus,

[1] Article 108-3 of the Civil Code, Article 8-2 (2) 2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5193 of Dec. 30, 1996) / [2] Article 1008-3 of the Civil Code, Article 8-2 (2) 2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 5193 of Dec. 30, 1996) (Article 12 subparagraph 3 of the current Inheritance Tax and Gift Tax Act)

[2] Supreme Court Decision 92Da50676 delivered on May 25, 1993 (Gong1993Ha, 1848), Supreme Court Decision 94Da39116 delivered on February 10, 1995 (Gong1995Sang, 1307), Supreme Court Decision 95Da51182 delivered on September 5, 1997 (Gong1997Ha, 305), Supreme Court Decision 97Nu7820 delivered on November 25, 197 (the same purport)

Plaintiff 1 and seven others (Law Firm Squa, Attorneys Park Woo-dong et al., Counsel for the plaintiff-appellant)

The Head of the Maternization Tax Office

Seoul High Court Decision 95Gu3659 delivered on October 16, 1996

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first and third grounds for appeal

A. The judgment of the court below on the point that theory of lawsuit points out (the 5th day of the five graves in the Sinpo-si ( Address omitted) was recognized as a gold-raising forest with the entire five graves in the above (No. 4, 1992) since the death of the decedent, and the forest land in this case was originally recognized as a gold-raising forest with the entire five graves in the above (No. 5th day of the grave), is justifiable in light of evidence relations, etc. as stated by the court below, and there is no error of law such as theory of lawsuit or violation of precedents, etc. In addition, the Supreme Court Decision 95Nu17236 Decided September 24, 1996 cited in the theory of lawsuit differs from the case, and it is not appropriate to be invoked in this case.

B. Article 108-3 of the Civil Act provides that a person who presides over a grave shall succeed to the ownership of a rearctal forest within 1 information pertaining to the grave, farmland within 600 square meters, spawals, spawals, and spawals, and spawals. As such, the reason why the property to be used, such as spawals, is excluded from those subject to general inheritance, thereby allowing the joint inheritance of, or equal division of, the property to be used is contrary to our custom and people's sentiment emphasizing the inheritance of ancestor worship and spawals. Therefore, in light of the purport of the above system, the forest still has the nature of the spawal forest, in fact, even if the base of a grave spawals and spawals had been transferred to a third party, until it actually moves the grave.

In the same purport, the judgment of the court below holding that if the deceased non-party, who was the deceased during the deceased's relocation of the deceased's grave even after the transfer of ownership of the deceased land due to the land expropriation, the forest of this case still has the nature as a gold-sea forest, and it is not recognized that there is no illegality of law such as misunderstanding of legal principles as pointed out. The argument is without merit.

2. On the second ground for appeal

If a certain piece of land is a gold-raising forest land or farmland which is a grave under Article 1008-3 of the Civil Act, the owner of the land within the scope prescribed by the above provision shall succeed to his/her ownership independently. In this case, if the owner of the farmland has a son, he/she shall be subject to the exception of special circumstances where he/she is unable to maintain his/her status as a person in charge of the removal of a grave (see Supreme Court Decision 95Da51182, Sept. 5, 1997). In such a case, even if the ownership transfer registration is made in the name of another heir, etc., even if the ownership transfer registration is made in the name of another heir, etc., it is merely a registration of invalidation (see Supreme Court Decisions 92Da50676, May 25, 1993; 94Da39116, Feb. 10, 195; 94Da47777, Mar. 24, 1995).

According to the records, although the plaintiff 4 is a permanent resident of a foreign country, he completed the reporting procedure of succession to the family on February 12, 1992 as a son, completed the reporting procedure of succession to the family on February 12, 192, held several real estate acquired through donation, inheritance, and sale in the Republic of Korea, and entered and depart from the Republic of Korea at any time with a resident registration, and he purchased a new burial site directly, completed the permission for opening a grave and the establishment of a private cemetery after the grave base, etc. was expropriated, and completed the procedures such as making a report of opening a grave and the establishment of a private cemetery in the name of the deceased son after the relocation of the grave. Thus, the above plaintiff cannot be deemed to have any special reason that the above plaintiff cannot maintain his status as the deceased son, and even if another inheritor was registered in the name of the deceased son, the forest land of this case, which is a gold forest within one information, shall be succeeded from the deceased son, and the registration shall not be deemed to be different.

Although the court below erred in finding that Plaintiff 4 was unable to become a foreign resident as a foreign resident, and thus, Plaintiff 1, Plaintiff 2, and Plaintiff 3 jointly deemed the Jeju master, it is reasonable to determine that the above forest is excluded from the taxable amount of inheritance taxes. As such, it is reasonable to determine that the above forest is excluded from the taxable amount of inheritance taxes. Therefore, there is no illegality such as misapprehension of the legal principle or violation of the rule of experience as otherwise alleged. It is also without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)