In an inherited property division trial without considering the negligence of inherited property, where a specific inherited property among inherited property subject to division is owned by one of the inheritors, and the specific inherited property and the value of a specific inherited property are divided into inherited property in cash by settling the difference between the value of the specific inherited property and the value of the specific inherited property, whether the co-inheritors acquire the inherited property in proportion to the specific inherited property calculated at the time of the commencement of the inheritance by taking account of inheritance property, contributory portion, etc. (affirmative

The negligence accrued from the inherited property (hereinafter “liability of inherited property”) before the completion of the division of inherited property after the commencement of the inheritance did not exist at the time of the commencement of the inheritance. In the adjudication on division of inherited property, it is reasonable to view that the co-inheritors acquired the specific inherited property in proportion to the “specific inherited property” calculated as at the time of the commencement of the inheritance, in accordance with the ratio of the “specific inherited property” calculated as at the time of the commencement of the inheritance, without considering such negligence. In the case of the adjudication on division of inherited property, where the specific inherited property among inherited property subject to division is divided by means of cash settlement of the difference between the specific inherited property and its specific inherited property and the value of the specific inherited property (so-called, the heir who divided the specific inherited property is deemed to have owned the inherited property retroactively at the time of the commencement of the inheritance pursuant to the main sentence of Article 1015 of the Civil Act.

Articles 1007, 1008, 1008-2, and 1015 of the Civil Act

Plaintiff (Counterclaim Defendant) (Law Firm New Yangyang, Attorney Park Dong-sap, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Rate, Attorneys Choi Dong-dong et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul High Court Decision 2014Na47773, 47780 decided April 16, 2015

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) regarding the claim for refund of rent of ○○ building and counterclaim is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. The negligence accrued from the inherited property after the commencement of inheritance (hereinafter “liability of inherited property”) did not exist at the time of the commencement of inheritance. In a judgment on division of inherited property, without considering such negligence in the inherited property, where a specific inherited property among the inherited property subject to division is to be owned by one of the inheritors, and is divided into inherited property by means of cash settlement of the difference between the specific inherited portion and the value of the specific inherited property (so-called the subject division method), the inheritor to whom the specific inherited property is divided shall be deemed to have owned the inherited property retroactively from the time of the commencement of inheritance pursuant to the main sentence of Article 1015 of the Civil Act, but the negligence of the inherited property shall not be deemed to have been retroactively owned by the inheritor. In such a case, it is reasonable to deem that the co-inheritors acquired the inherited property at the time of the commencement of inheritance, in accordance with the ratio of “specific inherited property” calculated as at the time of the commencement of inheritance, barring any special circumstances.

2. Nevertheless, on the erroneous premise that co-inheritors have the right to acquire inherited property according to their statutory shares of inheritance, the lower court rejected the principal claim relating to the rent income or unjust enrichment equivalent to the rent income from the ○○ building without examining the specific shares of inheritance between the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff) after commencing the inheritance, until the division of inherited property is finalized, and partly accepted the counterclaim claim.

The court below erred by misapprehending the legal principles as to the attribution of inherited property, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Meanwhile, the Plaintiff appealed against the remaining part of the principal lawsuit of the lower judgment against the Plaintiff. However, neither the petition of appeal nor the appellate brief submitted by the Plaintiff contains any indication in the grounds of appeal.

3. Therefore, the part of the judgment of the court below against the plaintiff as to the claim for return of rent and counterclaim part of the main office of ○○○ building is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)