2013 Gohap 9805 Return of Divided Inheritance

A

B

April 10, 2014

May 15, 2014

1. Of the instant lawsuit, the part regarding the claim for inheritance by agreement between the Plaintiff (Appointed Party) and the designated parties shall be dismissed.

2. The part concerning the claim for the support fee by the Appointor C is dismissed;

3. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The defendant shall pay to the plaintiff (appointed party, hereinafter referred to as the "Plaintiff") 21,170,000 won, 77860,000 won to the Appointed and 21,170,000 won per annum from the day after the delivery of a copy of the complaint to the day of full payment.

1. Basic facts

A. The Plaintiff, the Defendant, and the Appointor D are children of the Appointor C and E (the deceased on January 1, 1999, hereinafter “the deceased”).

B. G apartment No. 405, G apartment No. 1, 405 (hereinafter “instant apartment”) located in the Busan Northern-gu, Busan, was owned by the deceased. As to the above apartment, the ownership transfer registration was made on March 10, 200 on the ground of the inheritance due to the agreement division as of January 1, 1999, and the ownership transfer registration was made on July 28, 2000 on the ground of the donation as of July 28, 2000.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 3, the purport of the whole pleadings

2. The plaintiff's assertion

A. The Defendant and the Appointor D received KRW 25 million from the Plaintiff on May 11, 1992, and paid KRW 150,000 per month to the Appointor C as support fees. However, even around the above time, the Defendant did not pay KRW 150,00 per month to the Appointor C, and the Defendant is obliged to pay KRW 46,100,000,000,000 to the Appointor C for about 21 years.

B. Around February 2000, the heir of the deceased reached an agreement on the division of inherited property with the purport that the apartment house of this case, which is the inherited property of the deceased, should be owned by the defendant, under the condition that the defendant supports the appointed party C, and accordingly the registration of ownership transfer is completed in the future of the defendant. However, the defendant does not support the appointed party C even around the above time. The defendant is obligated to pay to the plaintiff and the appointed party the money equivalent to each inheritance share of the plaintiff and the appointed party out of the inheritance amount of KRW 180 million, which is the market price of the apartment of this case

3. Determination

A. Determination on the legality of the claim for inheritance payment by agreement among the instant lawsuit

(1) The defendant asserts to the effect that since ten years have already passed since the registration of ownership transfer was made in the name of the defendant with respect to the apartment of this case, this part of the claim is unlawful on the ground that the exclusion period is excessive.

(2) In a case where, on the premise that a person is a true inheritor with respect to the inheritance of property, claims the ownership or ownership of property rights, such as ownership or ownership rights arising from the inheritance, and only a person himself/herself claims the cancellation of registration (or transfer of registration for the restoration of a real name) on real estate, which is an inherited property, against some co-inheritors who have succeeded to the inheritance, the ownership or ownership rights have accrued. As long as the assertion is based on inheritance, regardless of the cause of the claim, it constitutes a lawsuit for recovery of inheritance under Article 999 of the Civil Act, and Article 99(2) of the Civil Act regarding the limitation period of the right to claim recovery of inheritance applies to this case (see, e.g., Supreme Court Decision 2005Da45452, Jul.

In light of health stand, purport of claim, cause of claim, etc. as to the apartment of this case, this part of claim is an action for recovery of inheritance under Article 999 of the Civil Act, on the premise that the plaintiff and the designated parties are the true heir of the deceased, and thus, on the ground that the registration of transfer of ownership in the name of the plaintiff and the designated parties is null and void. Therefore, Article 99(2) of the Civil Act on the limitation period of the right to claim recovery of inheritance applies to this case. As seen earlier, the fact that the ownership transfer registration has been made on March 10, 200 on the apartment of this case. The fact that the lawsuit of this case was filed on September 4, 2013 after the lapse of the limitation period (if the limitation period of claim of this part has not expired, the part of claim for the right to claim the inheritance payment of this case is unlawful only by the evidence submitted by the plaintiff and the designated parties that the defendant should own the inherited property of this case on the condition that the plaintiff support the apartment of this case.

B. Determination as to the claim for support fees

As alleged by the Plaintiff, as to whether the Defendant and the Appointor D agreed to pay KRW 150,000 per month to the Appointor C as support fees, the Defendant’s testimony and evidence submitted by the Plaintiff alone are insufficient to recognize it, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s assertion based on this premise is without merit without further review.

4. Conclusion

Therefore, the part of the claim for inheritance payment among the lawsuit of this case is unlawful and dismissed, and the remaining part of the claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judges and vice-directors

Judges Lee private-public;

Judge Choi Jin-hun