[1] In a case where the remaining co-inheritors, except the person who has renounced, have agreed on the division of inherited property while the report on the renunciation of inheritance is not accepted at the court, whether the agreement on division of inherited property becomes retroactively effective if the report on the renunciation of inheritance has been duly accepted (affirmative), and whether the same applies in a case where the person who has renounced participated in the agreement on division of inherited property and became

[2] Whether the renunciation of succession is subject to revocation of fraudulent act (negative)

[3] The case affirming the judgment below holding that the renunciation of inheritance cannot be subject to revocation of fraudulent act in case where the inheritor Gap reported the renunciation of inheritance, and the remaining co-inheritors received the above report, Gap thought that it does not constitute the inheritor from the beginning, and Gap agreed on the division of inherited property with the exception of Gap

[1] A renunciation of inheritance has its effect retroactively from the time the inheritance commenced (Article 1042 of the Civil Act), and the renouncer shall be deemed to have not been an inheritor from the beginning. Therefore, the agreement on the division of inherited property between the co-inheritors except the renouncer, who has not yet filed a report on the renunciation of inheritance or has not yet been accepted by the court, becomes effective retroactively after the report on the renunciation of inheritance was accepted lawfully and the effect of the renunciation of inheritance became effective. This is also true retroactively, even if the renouncer participated in the agreement on the division of inherited property and became the party thereto, and the agreement is based on the premise that the agreement is not recognized as a right to the inherited property by the renouncer.

[2] Although the renunciation of inheritance does not affect the property of the renouncer (see Article 386 of the Debtor Rehabilitation and Bankruptcy Act, with respect to such aspect, the waiver of inheritance does not constitute an act of extinguishing the status of an inheritor itself, and does not correspond to the act of reasonable property law. Rather, the waiver of inheritance has the character of “personal determination” that is made based on the overall determination of the personality relationship with other inheritors, including the decedent or subordinate inheritors. Although the obligor is insolvent, it does not readily recognize the revocation of the fraudulent act by the obligee that may result in the obligee’s refusal of the renunciation of inheritance. Moreover, the inheritance does not constitute a combination of property rights and obligations at the time of the decedent’s death, including all property rights and obligations at the time of the heir’s death, and has a large number of interested parties, and it does not constitute a combination of legal relations between the obligee and the subsequent purchaser, as seen above, with respect to a legal act constituting a fraudulent act of waiver of inheritance, whose status as an inheritor itself depends on the obligee’s inherent intent of revocation of inheritance, and thus, the legal relationship between the obligee and subsequent purchaser is relatively effective.

[3] The case affirming the judgment below that where the inheritor Gap reported the renunciation of inheritance, and the remaining co-inheritors received the above report, Gap thought that it does not belong to the inheritor from the beginning, and the agreement on division of inherited property was made with the exception of Gap on the date on which the report on renunciation of inheritance was made, Eul cannot be subject to revocation of fraudulent act, and even if Gap participated in the agreement on division of inherited property and became a party, the agreement did not recognize Gap's right to inherited property on the premise of Gap's renunciation of inheritance, and thus, Gap's report on renunciation of inheritance which was made on the same day does not change the effect of renunciation

[1] Articles 1013(1), 1041, and 1042 of the Civil Act / [2] Articles 406(1) and 1041 of the Civil Act; Article 386 of the Debtor Rehabilitation and Bankruptcy Act / [3] Articles 406(1), 1013(1), 1041, and 1042 of the Civil Act

Plaintiff (Attorney Kim Jong-ro, Counsel for the plaintiff-appellant)

Defendant 1 and three others (Attorney Cho Jae-woo, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na102085 decided February 22, 2011

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. A renunciation of inheritance has its effect retroactively from the time the inheritance commenced (Article 1042 of the Civil Act), and the renouncer may have never been an inheritor (see, e.g., Supreme Court Order 2003Ma988, Aug. 11, 2003). Therefore, the same shall apply where a report on renunciation of inheritance has not yet been filed or a report on division of inheritance has not yet been accepted by the court, and the remaining co-inheritors except those who have not yet been accepted by the court have been legally accepted the report of renunciation of inheritance after the agreement on division of inherited property, and the effect of renunciation of inheritance has become effective retroactively because all the co-inheritors qualified have been duly accepted after the agreement on division of inherited property has become effective. This shall be deemed to be valid retroactively, even if a person who has renounced the inheritance participated in the agreement on division of inherited property and became a party thereto, and such agreement is not recognized as a right to inherited

Meanwhile, even though the renunciation of inheritance does not affect the property of the person who has renounced (see Article 386 of the Debtor Rehabilitation and Bankruptcy Act, with respect to such aspect), it does not constitute an act extinguishing the status of an inheritor itself as seen earlier, and does not constitute a net act under the property law. Rather, the renunciation of inheritance has the nature of “personal relationship with other inheritors, including the inheritee or subordinate inheritors,” which is first judged as a whole. As to such an act, the revocation of the fraudulent act by the obligee, which may result in the omission of the renunciation of inheritance by the obligee, is not easy, even if the obligee, who is the inheritor, is in insolvent, and thus, in light of the overall property rights, including all property rights, obligations, and burdens that the heir had at the time of the death of the inheritee, and thus, is more related to the obligee, and thus, the obligee’s obligee’s right to revocation is unreasonable than the obligee’s legal relationship at the time of the waiver of inheritance and the subsequent purchaser’s legal relation at the time of the revocation of inheritance and the subsequent purchaser’s legal relation.

2. The facts acknowledged by the court below and the judgment of the court below are as follows.

A. On October 23, 2007, the Plaintiff filed a lawsuit claiming an agreed amount claim against Nonparty 1 for the payment of KRW 280,000,000 as Seoul Central District Court 2007Gahap7615,000 and damages for delay thereof, and received a favorable judgment from the above court. The judgment became final and conclusive around that time.

On the other hand, Nonparty 1 and the Defendants’ mother died on December 4, 2009. On January 28, 2010, Nonparty 1 reported the renunciation of inheritance on January 28, 2010, during the period of the renunciation of inheritance to Seoul Family Court 2010-Ma852, and the said report was accepted by the said court on March 15, 2010.

On January 28, 2010, the Defendants, the remaining co-inheritors except Nonparty 1, in receipt of the above report, thought that Nonparty 1 does not correspond to the deceased’s heir from the beginning due to the retroactive effect of the renunciation. On January 28, 2010, the Defendants, the co-inheritors except Nonparty 1, who agreed to divide the shares of the deceased’s inherited property (3/13; hereinafter “the inherited property of this case”) in proportion to their statutory shares of the deceased’s inherited property, with the exception of Nonparty 1, on the same day as the above report of renunciation of inheritance, and completed the registration of transfer of each share ownership on the ground of inheritance due to a division made on December 4, 2009.

B. On December 4, 2009, the Plaintiff’s agreement on the division of inherited property between Nonparty 1, who had been in excess of debt, and the Defendants, co-inheritors, renounced their right to their share of inheritance among the inherited property of this case, should be revoked as it constitutes a fraudulent act detrimental to the Plaintiff, which is the obligee. Accordingly, the Defendants asserted that they are obliged to perform the procedure for the cancellation of registration of ownership transfer.

The lower court rejected the Plaintiff’s claim on the ground that the Plaintiff’s waiver of inheritance cannot be subject to revocation of fraudulent act, on the following grounds: (a) the Defendants except Nonparty 1’s share equivalent to the statutory share of the inherited property, including Nonparty 1’s share in the inherited property; (b) the registration of transfer of ownership was made in the future of the Defendants, on the ground that Nonparty 1 renounced the inheritance and became an inheritor from the beginning; and (c) it cannot be deemed as a result of the agreement on the division of inherited property between Nonparty 1 and the Defendants, as alleged by the Plaintiff.

3. Examining the legal principles as seen earlier in light of the records, the waiver of inheritance cannot be subject to the revocation of fraudulent act, and even if Nonparty 1 participated in the agreement on the division of inherited property and became the party thereto, as alleged by the Plaintiff, the judgment of the court below is justifiable to the effect that the contents of the agreement do not recognize the right to inherited property on the premise of his renunciation of inheritance, and that the effect of the renunciation of inheritance is not different as long as the effect of the renunciation of inheritance was duly generated upon the receipt of his report on the renunciation of inheritance made on the same day after the report on the renunciation of inheritance. contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the waiver

4. Therefore, all appeals are 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 Kim Ji-hyung (Presiding Justice)