Main Issues
Whether a co-inheritors who divided the inherited property before recognition of the person who received recognition as to the person who received recognition, acquired the negligence from the divided inherited property, constitutes unjust enrichment in relation to the person who received recognition (negative)
Summary of Judgment
A person who becomes a co-inheritors after the commencement of inheritance or after the judgment becomes final and conclusive, may naturally participate in the division with other co-inheritors, if the inherited property has not yet been divided or disposed of. However, the proviso of Article 860 of the Civil Act that limits the retroactive effect of recognition in cases where other co-inheritors have already been divided or disposed of before recognition is applied to the cases where the inherited property has already been divided or disposed of by other co-inheritors before recognition, and thus, the person to whom it was ex post facto recognition may not deny the validity of division or other disposal by other co-inheritors. In such a case, Article 1014 of the Civil Act recognizes a right corresponding to his/her inherited property to other co-inheritors by allowing recognition to claim payment of equivalent value to his/her inherited property to the other co-inheritors, thereby rationally adjusting the interest of the person to whom it was recognized and the existing legal relationship. Therefore, the inherited property already divided or disposed by the co-inheritors before recognition is final and conclusive ownership to the transferee of the inherited property by an act of disposal by the co-inheritors or co-inheritors.
[Reference Provisions]
Articles 102, 741, 860, and 1014 of the Civil Act
Reference Cases
[Plaintiff, Appellant] Plaintiff 1 and 2 others (Law Firm Han-sung, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Plaintiff-Appellant
Plaintiff (Attorney Shin Shin-chul et al., Counsel for the plaintiff-appellant)
Defendant-Appellee
Defendant 1 and two others (Attorneys Lee Im-soo et al., Counsel for the defendant-appellee)
Judgment of the lower court
Seoul High Court Decision 2005Na54649 delivered on October 24, 2006
Text
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
Reasons
1. A person who becomes a co-inheritors after the commencement of inheritance or after the judgment becomes final and conclusive, may, as a matter of course, participate in division with other co-inheritors in cases where the inherited property has not yet been divided or disposed of. However, in cases where other co-inheritors have already divided or disposed of the inherited property before affiliation, the proviso of Article 860 of the Civil Act that limits the retroactive effect of affiliation is applied, and thus, it would be impossible for the person subject to ex post facto recognition to deny the validity of division or other disposal by other co-inheritors. In such cases, Article 1014 of the Civil Act recognizes a right of the person to whom recognition was made to claim payment of the equivalent value of the inherited property to other co-inheritors, thereby allowing the person subject to recognition to claim payment of the equivalent value of the inherited property to his/her share, thereby rationally adjusting the interests and existing legal relationships (see Supreme Court Decision 93Da12
Therefore, the inherited property already divided or disposed of by the co-inheritors before affiliation is naturally reverted to the transferee by the disposal act of the co-inheritors or co-inheritors who received the division according to the restriction on the retroactive effect of affiliation as stipulated in the proviso of Article 860 of the Civil Code. Since the person who acquired the ownership of the inherited property has the right to receive the negligence in accordance with Article 102 of the Civil Code, it cannot be said that the co-inheritors who divided the inherited property before affiliation to the person who received affiliation acquires the negligence from the divided inherited property is unjust enrichment in relation to the person who received affiliation.
In the same purport, the lower court determined that, among the inherited property of the deceased (name omitted), the Defendants’ acquisition of dividends and profits equivalent to rent accrued after the commencement of inheritance with respect to the shares and real estate of unlisted companies already divided before the judgment on recognition of the Plaintiff became final and conclusive, by negligence of the inherited property does not constitute unjust enrichment. In light of the above legal principles and records, such determination by the lower court is justifiable, and it did not err in the misapprehension of legal principles as to the respective purport and relationship under the proviso of Articles 860 and 1014 of the Civil Act, as otherwise alleged in the grounds of appeal, and there were no errors in the misapprehension of legal principles as to unjust enrichment, and the status of other co-inheritors who divided inherited property before recognition of the
2. As long as Article 860 of the Civil Act provides that "a recognition shall take effect retroactively from the time of birth of the person," while the proviso limits the retroactive effect of recognition, other co-inheritors who have already divided an inherited property before recognition of the person, shall have the ownership of the divided inherited property in accordance with the provisions of the above proviso, and further, as the owner of the divided inherited property has the right to receive the negligence accrued therefrom, deeming that it is impossible to claim a return of unjust enrichment equivalent to the value of the part corresponding to their inherited property from the inherited property already divided to other co-inheritors before recognition of the person, because it unfairly treats the rights of the person to be recognized as a result of the retroactive effect of recognition, which would not be contrary to fairness and justice. Therefore, the argument in the grounds of appeal on this point is not acceptable.
3. 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.
Justices Kim Ji-hyung (Presiding Justice)