[1] The scope to which Article 2 of the Addenda of the Civil Act ( January 14, 2002) applies to the decision of unconstitutionality as to Article 999(2) of the former Civil Act concerning the limitation period of the right to claim recovery of inheritance

[2] The case holding that where a lawsuit is filed to recover inheritance after the enforcement of the amended Civil Code, the limitation period of "three years from the date on which the infringement of inheritance rights becomes known, and ten years from the date on which the infringement of inheritance rights occurred" under Article 99(2) of the amended Civil Code shall apply

[1] Article 2 of the Addenda to the Civil Act (amended by Act No. 6591 of Jan. 14, 2002) provides that "no effect shall be affected by the previous provisions." This only has the meaning of a transitional provision that makes it impossible to apply the amended Civil Act in a case where the right of acquisition is infringed by the revised Civil Act, and the revised Civil Act shall apply to a case brought after the enforcement of the amended Civil Act. In other words, the Constitutional Court has made a decision that "10 years from the date the inheritance commenced" in Article 99 (2) of the former Civil Act (amended by Act No. 6591 of Jan. 14, 2002) is contrary to the Constitution, and the period from July 19, 2001 to Jan. 13, 2002, which is the day immediately before the enforcement date of the amended Civil Act, "the provision on the exclusion period of the right of claim for recovery of inheritance," which can be retroactively excluded from the enforcement date of the amended Civil Act.

[2] The case holding that where a lawsuit for recovery of inheritance was filed after the enforcement of the amended Civil Act (Act No. 6591 of Jan. 14, 2002), the limitation period of "ten years from the date of commencement of inheritance" under Article 999 (2) of the former Civil Act does not apply to Article 999 (2) of the Addenda to the amended Civil Act, but the limitation period of "three years from the date of becoming aware of the infringement of inheritance rights, and ten years from the date of infringement of inheritance rights" under Article 999 (2) of the amended Civil Act shall apply

[1] Article 99(2) of the former Civil Act (amended by Act No. 6591 of Jan. 14, 2002) (see current Article 999(2)), Article 99(2) of the Addenda to the Civil Act (amended by Act No. 6591 of Jan. 14, 2002) / [2] Article 999(2) of the former Civil Act (amended by Act No. 6591 of Jan. 14, 2002) (see current Article 99(2)), Article 999(2) (see current Article 999(2) of the Civil Act (amended by Act No. 6591

Plaintiff 1 and 3 others (Attorney Park Young-hwan et al., Counsel for the plaintiff-appellant-appellee)

Defendant (Law Firm Sejong, Attorneys Lee Dong-young et al., Counsel for defendant-appellant)

February 29, 2008

1. The part of the plaintiffs' claim for confirmation of ownership among the lawsuit of this case is dismissed.

2. The defendant will implement each procedure for registration of cancellation of ownership preservation, which was completed by the Daegu District Court No. 38101 on June 8, 2007, with respect to each share of 12/65 square meters among the shares of 126-5 2,357 square meters in Seocho-dong, Nowon-gu, Seoul Special Metropolitan City.

3. The costs of lawsuit shall be borne by the defendant.

It is confirmed that 12/65 shares of each of the 12/65 square meters of the main text of paragraph (2) of this case and 126-5 square meters of Gu-si, Gu-si (hereinafter “instant road”) are owned by the plaintiffs.

1. Ex officio determination on the legitimacy of the part requesting ownership verification

ex officio, we examine the legitimacy of the plaintiffs' claim for confirmation of ownership of this case.

In general, “interest in confirmation” in a lawsuit for confirmation is recognized when the party’s right or legal status is currently unstable and dangerous, and the removal thereof is the most effective and appropriate means. Thus, an action for confirmation may be brought, barring any special circumstance, and thus, there is no benefit in confirmation as there is no invalidation in uneasy, and no benefit in confirmation exists. On the other hand, in a case where there is a person who has completed registration of preservation of ownership on a certain land, the legitimate owner may file a lawsuit against the title holder to seek cancellation of registration of preservation of ownership and file a final judgment ordering cancellation of registration of preservation under his/her name.

In the instant case, the Plaintiffs asserted that shares of 12/65 of the instant roads are owned by themselves and sought cancellation of their preservation registration against the Defendant, and also sought confirmation of ownership of each share of 12/65 of the instant roads. The Plaintiffs’ winning judgment in favor of the Defendant on the claim for cancellation of registration of preservation of ownership on the instant roads may resolve the disputes concerning the instant roads fundamentally with the Defendant, and in addition, there seems to be any special circumstance to file a lawsuit for confirmation. Thus, the Plaintiffs’ claim for this portion is unlawful as there is no benefit of confirmation.

2. Judgment on the defendant's main defense

The defendant is the plaintiff's claim for recovery of inheritance, and Article 999 (2) of the Addenda of the Civil Act (amended by Act No. 6591 of Jan. 14, 2002) provides that "the effect created by the previous provisions shall not be affected," and Article 999 (2) of the Civil Act (amended by Act No. 6591) provides that the limitation period of the claim for recovery of inheritance shall be ten years from the commencement date of inheritance. The lawsuit of this case was filed after the lapse of ten years from May 31, 1955 when the deceased non-party 2 died, and the limitation period under Article 99 (2) of the former Civil Act has expired. Thus, the plaintiffs' lawsuit of this case is unlawful.

However, the plaintiff's claim of this case constitutes a lawsuit for recovery of inheritance (see Supreme Court Decision 2005Da45452, Jul. 4, 2006, etc.). The Constitutional Court decided on July 19, 201 that "10 years from the date of commencement of inheritance" in Article 999 (2) of the former Civil Act in relation to the exclusion period of the lawsuit for recovery of inheritance, where "10 years from the date of commencement of inheritance," in relation to the case where "10 years from the date of commencement of inheritance" in Article 999 (2) of the former Civil Act is against the Constitution, and where the Constitutional Court makes a proposal for adjudication on the unconstitutionality of the same kind before the Constitutional Court's decision of unconstitutionality, or makes a request for adjudication on the unconstitutionality of the same kind before the Constitutional Court's decision of unconstitutionality, or made a request for adjudication on the unconstitutionality of the same kind before the Supreme Court's decision of unconstitutionality, but it did not refer to the case where 201 million cases or the general court's decision.

Therefore, the above Constitutional Court's decision of unconstitutionality also applies to this case, which is a lawsuit for recovery of inheritance filed after the decision of unconstitutionality, and the amended Civil Act promulgated on January 14, 2002 following the above decision of unconstitutionality stipulated that "this Act shall enter into force on the date of its promulgation," and thus, in this case, a lawsuit for recovery of inheritance filed after the enforcement of the amended Civil Act, the exclusion period of 10 years from the date of commencement of inheritance under Article 99(2) of the former Civil Act cannot be applied and the exclusion period under the amended Civil Act shall not be applied.

On the other hand, Article 2 of the Addenda to the amended Civil Code provides that "no effect shall be affected by the previous provisions," and this only has the meaning of a transitional provision that makes it impossible to apply the amended Civil Code in a case where the "right of acquisition" is infringed by the amended Civil Code, as seen next, and the amended Civil Code shall apply to a case brought after the enforcement of the amended Civil Code, notwithstanding Article 2 of the Addenda to the amended Civil Code.

In other words, the Constitutional Court made a decision that "10 years from the date of commencement of inheritance" in Article 999 (2) of the former Civil Code is in violation of the Constitution and lost its effect from July 19, 2001 to January 13, 2002, which is the day before the enforcement date of the amended Civil Code, only stipulated that "3 years from the date of becoming aware of such infringement" should be followed by the amendment of the Civil Code in which "10 years from the date of infringement on inheritance rights" is added, and the requirements for exercising the right to recover inheritance have been strengthened. However, the exclusion period of "10 years from the date of infringement on inheritance rights," but "3 years from the date of infringement on inheritance rights," which can not be denied from the date of enforcement date of the amended Civil Code, can be retroactively restricted from the amendment of the Civil Code in the case where the amendment of the Civil Code has already become effective after the enforcement date of the amended Civil Code.

Article 99(2) of the Addenda to the amended Civil Act provides that “The previous provision shall not affect the validity of the previous provision” shall be deemed to include the part “10 years from the date of commencement of inheritance” in Article 99(2) of the former Civil Act, and where ten years have passed from the date of commencement of inheritance before the date of commencement of inheritance, the claim for recovery of inheritance shall be interpreted to be extinguished pursuant to Article 999(2) of the former Civil Act. However, if such interpretation is made, the Civil Act shall not apply to cases where ten years have passed before the date of commencement of inheritance, regardless of when there was any infringement of inheritance rights, regardless of when there was any infringement of inheritance rights. This is not only an interpretation contrary to the validity of the decision of unconstitutionality of the amended Civil Act, but also an amendment of the amended Civil Act shall not apply to cases where ten years have passed from the date of commencement of inheritance rights, and the right to claim recovery becomes extinct after the date of commencement of inheritance in accordance with the Constitutional Court’s decision and the purport of the amended Civil Act.”

Therefore, Article 99(2) of the amended Civil Act applies to the case brought an action after the enforcement date of the amended Civil Act, “three years from the date on which the infringement became known, and ten years from the date on which the infringement of inheritance rights occurred,” and in this case, it shall be deemed that the Defendant’s judgment on the confirmation of ownership of the Republic of Korea became final and conclusive on May 15, 2007. Thus, the Defendant’s defense of this case’s principal safety defense, which was brought after the expiration of the limitation period of the right to claim inheritance recovery, is groundless.

3. Judgment on the merits

(a) Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the arguments in each of the evidence Nos. 1, 2, 3-1, 2, 3, 4, and 5.

(1) On October 5, 1912, Nonparty 3 was subject to the assessment of KRW 128,064, 128, 126-1, 969, 126-2, 126-3, 470, 126-4, 126-3, 180, and 713, all of the lands except the above 713, which were sold to third parties after the registration of ownership preservation, but the above 713, 1952, was unregistered.

(2) The non-party 3 died on June 9, 1926, and the non-party 4 independently succeeded to the deceased non-party 3's property. The non-party 4 died on April 25, 1939 and the non-party 5, who is the head, independently succeeded to the deceased non-party 4's property. The non-party 5 also died on August 15, 1953, and the deceased non-party 2, who is the head, solely succeeded to the deceased non-party 5's property. The non-party 2 was dead on May 31, 1955 according to the Daegu District Court's adjudication of disappearance of Kimcheon-cheon on July 12, 1974.

(3) As Nonparty 1, the wife of Nonparty 2, the Plaintiffs, the Defendant, and the Nonparty 1 died on November 24, 2007 while the instant lawsuit was pending, the Plaintiffs and Nonparty 6 (adopted Nonparty 1) inherited the deceased Nonparty 1, and eventually, the Plaintiffs’ inheritance shares are 12/65 [2/13 of the shares inherited by the Plaintiff from the deceased Nonparty 2 + 2/65 (2/13 x 1/5) of the shares inherited by the deceased Nonparty 1].

(4) On April 19, 2007, the Defendant filed a lawsuit against Nonparty 2, who was the sole heir of Nonparty 2, and filed a judgment against the Republic of Korea on April 19, 2007 that the instant road is owned by the Defendant, and the said judgment became final and conclusive on May 15, 2007.

(5) On June 1, 2007, the plaintiffs received a decision against the defendant on provisional disposition against the prohibition of disposal of the road of this case from the Daegu District Court Kimcheon-gu 2007Kadan790 on the road of this case, and the registration of preservation of ownership in the name of the defendant was completed on the 8th of the same month for the registration of such provisional disposition.

(b) Markets:

(1) According to the above facts, the plaintiffs are owners of 12/65 shares of each of the roads in this case. Thus, the defendant is obligated to implement the registration procedure for cancellation of each of the 12/65 shares of each of the roads in this case.

(2) As to this, the Defendant asserts that, in calculating the portion of inheritance, the portion of inheritance should be calculated with the Plaintiffs as at the time of the declaration of disappearance with respect to Nonparty 2.

However, as seen above, the missing period against the deceased non-party 2 on May 31, 195, prior to the enforcement date of the Civil Act, and the adjudication of disappearance was made on July 12, 1974, after the enforcement date of the Civil Act. In such a case, the provisions of the Civil Act shall apply to the inheritance order, the inheritance portion, and other inheritance pursuant to Article 25 (2) of the Addenda of the Civil Act, but the deceased non-party 2 on May 31, 1955, when the period of disappearance expires. Thus, in calculating the inheritance portion, the issue of whether a female lineal descendant is in the same place shall be determined on the basis of the expiration date of the period of disappearance, which is the date of commencing the inheritance. Since all the deceased non-party 2's inheritors at the time of the expiration of the period of disappearance, the above assertion by the defendant is without merit.

4. Conclusion

Therefore, the part of the plaintiffs' claim for confirmation of ownership in the lawsuit of this case is unlawful and dismissed, and the plaintiffs' claim for cancellation of registration of preservation of ownership is justified, and it is so decided as per Disposition.

Justices Kang Dong-dong (Presiding Judge) Kim Jong-young Kim Young-chul