In case where a decedent cancelled resident registration by departure from Korea with permission to emigrate to overseas but a living ground at the time of death was in Korea, whether the decedent shall be deemed to have a domicile in Korea in determining whether to obtain inheritance tax personal deduction

Article 1-2 of the Enforcement Decree of the Inheritance Tax Act provides that the place registered under the Resident Registration Act shall be deemed to be a domicile under the Inheritance Tax Act. Article 1-2 of the Enforcement Decree of the Inheritance Tax Act provides that "where a person has a domicile in the Republic of Korea" shall be construed as a provision concerning the case where a person has a domicile in the Republic of Korea, and the domicile shall be important. However, the resident registration shall not be determined. Thus, even if a person Gap, who is the decedent of the plaintiffs, left the Republic of Korea with the permission of emigration on June 21, 1980 and cancelled the resident registration, he returned to the Republic of Korea on June 17, 1980, and returned to the Republic of Korea on October 10, 1981, and resided in the Republic of Korea until he died on January 29, 1982, considering the situation where the person actually resides in the Republic of Korea, family relations and members' status, the situation of entry into and departure from Korea, and his reported domicile at the time of his death."

Article 11 of the Inheritance Tax Act, Article 1-2 of the Enforcement Decree of the Inheritance Tax Act, Articles 18(1) and 998 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Attorney Lee Young-spon et al., Counsel for the plaintiff-appellant-appellee and 1 other

Head of Western Tax Office

Seoul High Court Decision 88Gu6742 delivered on November 17, 1989

The original judgment shall be reversed and the case shall be remanded to the Seoul High Court.

1. As to ground of appeal No. 1

Article 1(1) of the Enforcement Decree of the Inheritance Tax Act provides that the tax office having jurisdiction over the place of commencement of inheritance shall be the tax office having jurisdiction over the place of commencement of inheritance. Articles 98 and 981 of the Civil Act provide that the inheritance of property shall commence at the place of the inheritee’s domicile. The Inheritance Tax Act separates cases where the decedent has a domicile in Korea at the time of his/her death and where the decedent does not do so, the scope of objects of taxation of inheritance tax, the scope of the amount to be deducted from the value of inherited property, and whether to grant various deductions. Thus, Article 18(1) of the Civil Act provides that the place where a living is based refers to the place where a living is based, and it shall be determined based on objective facts of his/her living relationship, such as the existence of a family living together in Korea and a property located in Korea (see Supreme Court Decision 83Nu548, Mar

Article 1-2 of the Enforcement Decree of the Inheritance Tax Act provides that a person who has at least two addresses at the same time (Article 18(2) of the Civil Act) shall be deemed to have a domicile registered under the Resident Registration Act, and Article 1-2 of the Enforcement Decree of the Inheritance Tax Act provides that a person who has at least two addresses at the same time shall be deemed to have a domicile under the Resident Registration Act shall be deemed to have a domicile under the Inheritance Tax Act.

According to the reasoning of the judgment of the court below, the court below judged that the non-party 1, who is the decedent, was cancelled the resident registration by departing from the Republic of Korea with the permission of emigration from the Minister of Health and Welfare under the Emigration Act on June 21, 1980. However, as the court below acknowledged later, the above order was returned to the Republic of Korea on December 17, 1980 after departure, and it was returned to the Republic of Korea on October 10, 1982 and resided in the Republic of Korea until the death on January 29, 1982. Thus, the court below should consider that the above order of the non-party 1,000 family status as well as the above domestic property status of the decedent, and the family relation status of subparagraph 12, and subparagraph 5 through 8, and that the above defendant 1,000 residential relation should be seen as the actual resident's residential situation and the above domestic residential situation of the Dong 1,000 residential area reported to the Minister of Health and Welfare.

Therefore, the court below erred by misapprehending the above provisions on address, thereby adversely affecting the conclusion of the judgment, and there is a ground to criticize this.

2. Accordingly, without determining the remaining grounds of appeal by the plaintiff's attorney, the court below reversed the original judgment and remanded the case to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)