2015Da51920 Registration of cancellation of the establishment of a mortgage

A person shall be appointed.

A person shall be appointed.

Seoul High Court Decision 2014Na39079 Decided July 17, 2015

February 18, 2016

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. An agreement on the division of jointly inherited property with a content that sets forth the scope of ownership on inherited property constitutes an act against interest under Article 921 of the Civil Act, unless there are special circumstances to deem that there is no possibility of conflict of interests between heirs due to the objective nature of the act. Furthermore, in a case where the first inheritance commences due to the death of the inheritee and the second inheritance commences due to the death of one of the first inheritors, and the second inheritance commences, if there is a minor among the second inheritors, the special representative appointed a minor, and the special representative appointed a minor to hold a division agreement on behalf of the minor, and if the person with parental authority, who is the second co-inheritors, holds a division agreement on the inherited property as a minor's legal representative, such agreement is null and void unless ratification is confirmed by the representative (see, e.g., Supreme Court Decision 2007Da17482, Mar. 10, 2011).

In addition, if a person who violated the mandatory law voluntarily rejects his/her assertion on the ground that he/she is an exercise of the right in violation of the principle of trust and good faith, this would result in realizing the result of excluding the parties by the mandatory law, and the legislative intent is entirely entirely blind, barring any special circumstances, such assertion cannot be deemed as contrary to the principle of trust and good faith. Meanwhile, in order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, the other party has to have provided the good faith or had good faith objectively, and the exercise of the right against the other party’s good faith should reach the point that is not acceptable in light of the concept of justice (see, e.g., Supreme Court Decisions 2005Da64552, Nov. 29, 2007; 2007Da17482, Mar. 10, 2011).

2. The court below acknowledged the facts and circumstances as stated in its holding. (1) The first agreement is ① for the second real estate inherited from D, the first agreement between the plaintiff, K, M, P (hereinafter "the plaintiff, etc.") and D's successors, excluding the defendant, F, G, H, I (hereinafter "the defendant, etc.") and ② The agreement on division of inherited property between the defendant, F, G, H, I (hereinafter "the defendant, etc.") as a result of the agreement on division of inherited property for the second real estate as to the shares inherited by the plaintiff, etc. as a result of the agreement on division of inherited property for the first and third real estate for E's own property, and the division agreement on the property to be inherited between the plaintiff, etc. who becomes the heir in the case of the death of E. (2) since the first agreement is not in violation of Article 921 of the Civil Act, it is reasonable to view that the first agreement is invalid, and since the first agreement is not in violation of the first agreement on the appointment of a person who is a minor, the plaintiff's representative.

3. Examining the reasoning of the judgment below in light of the records, the judgment of the court below on the nature of the first agreement and the status of the plaintiff et al. is partly inappropriate. However, since the plaintiff who is a person in parental authority as the legal representative of P without appointing a special agent for the minor P, the first agreement is deemed null and void in its entirety, the judgment of the court below which rejected the defendant's assertion of ratification and the violation of the good faith principle is just and all are based on the above legal principles. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by failing to exhaust all necessary deliberations, by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

4. 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 Kim Chang-suk

Justices Lee Sang-hoon

Justices Cho Jong-hee

Justices Park Sang-ok