[1] The case holding that with respect to a family court's adjudication for which a report on qualified acceptance of inheritance was accepted before May 27, 1998 by an inheritor who was aware of the commencement of inheritance before the commencement of inheritance, it can be deemed that the status of qualified acceptance can be viewed as effective under Article 2 (2) of the Addenda of the Civil Act amended during the period of appeal on the grounds that

[2] Whether an heir who has already disposed of inherited property through the division of inherited property through the division of inherited property can obtain a qualified acceptance pursuant to Article 1019(3) of the Civil Code (affirmative)

[1] The case holding that with respect to a family court's adjudication for which a report on qualified acceptance was accepted before May 27, 1998 on the commencement of inheritance, it can be viewed that the qualified acceptance was effective as a qualified acceptance pursuant to Article 2 of the Addenda of the Civil Act (amended on December 29, 2005) amended during the period of final appeal

[2] Article 1019(3) of the Civil Act provides that a qualified acceptance may be made within three months from the date on which the heir becomes aware of the excess of the inheritance obligation, as well as where a simple approval is deemed granted pursuant to Article 1019(1) and (2) of the Civil Act without gross negligence without knowing the excess of the inheritance obligation within the period of time under Article 1019(1) of the Civil Act, and even where a simple approval is deemed granted pursuant to Article 1026 subparag. 1 and 2 of the Civil Act, the heir still can make a qualified acceptance pursuant to Article 1019(3) of the Civil Act even if he/she has already disposed of the inherited property through the consultation and division of inherited property. Therefore, even if the heir has already disposed

[1] Paragraph (2) of the Addenda to the Civil Act ( December 29, 2005) / [2] Paragraph (3) of Article 1019 of the Civil Act, Article 1026 subparagraph 1 and 2 of the Civil Act, Paragraph (3) of the Addenda to the Civil Act ( January 14, 2002)

[2] Constitutional Court en banc Decision 2002Hun-Ga222, 2002Hun-Ba40, 2003Hun-Ba19, 46 decided Jan. 29, 2004 (Hun-Gong89, 221)

Korea Technology Finance Corporation (Attorneys Han Han-soo et al., Counsel for the defendant-appellant)

Defendant 1 and two others

Seoul High Court Decision 2002Na51205 delivered on April 24, 2003

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The court below acknowledged that the deceased Kim Jae-gu (hereinafter referred to as the "the deceased") has jointly and severally guaranteed the obligation of indemnity against the plaintiff of Jinsung Sys Co., Ltd. due to each credit guarantee agreement of this case, the deceased died on January 9, 1998 and became the defendants and co-inheritors of the first instance trial, Kim Dong-dong, and Cho Jong-do became co-inheritors. The defendants did not make a qualified acceptance report within three months from the date of the deceased's death, and only after the amendment of the Civil Act (amended by Act No. 6591 of Jan. 14, 2002 and amended by Act No. 7765 of Dec. 29, 2005, hereinafter referred to as the "former Civil Act"), the court below held that the previous judgment of acceptance of the qualified acceptance report from the family court (hereinafter referred to as "the judgment of this case") was not effective before May 27, 1998 (hereinafter referred to as the "former Civil Act").

However, the Constitutional Court found that the inheritance was commenced before January 29, 2004 and May 27, 1998. However, the Constitutional Court rendered a ruling of inconsistency with the Constitution as to part of the previous Addenda which became a premise of judgment of inconsistency with the Constitution, on the ground that the exclusion of a person who became aware of the fact that the inheritance obligation exceeded inherited property goes against the principle of equality, etc. In this case, the Constitutional Court made a ruling of inconsistency with the Constitution as to the above part of the previous Addenda which became a premise of judgment of inconsistency with the Constitution, and accordingly, the amended Civil Act (amended by Act No. 7765, Dec. 29, 2005; hereinafter referred to as the "amended Civil Act") established Paragraph (4) before the revised Civil Act newly established Paragraph (1) prior to the commencement of inheritance before May 27, 1998, but did not know the fact that the inheritance obligation exceeded inherited property within the period prescribed by Paragraph (1) of Article 1019 of the amended Civil Act before the enforcement of the amended Civil Act.

Therefore, even if the Defendants knew of the commencement of inheritance before May 27, 1998, if they became aware of the excess of the inheritance obligation without gross negligence, and became aware after May 27, 1998, the Defendants are subject to special cases concerning qualified acceptance under Paragraph 4 of the Addenda of the Civil Act before the amendment established by the amended Civil Act, and the judgment of this case becomes effective in accordance with Paragraph 2 of the Addenda of the amended Civil Act.

2. Furthermore, prior to the instant judgment, the lower court determined that, since the Defendants and co-inheritors of the deceased, such as Kim Dong-dong and Cho Mag-do, disposed of inherited property through the division of inherited property through the consultation, this shall be deemed as a simple approval under Article 1026 subparag. 1 of the Civil Act, and that the instant judgment thereafter was invalid as a qualified acceptance in this respect.

However, Article 1019(3) of the Civil Act, which was newly established under the Civil Act prior to the amendment, provides that a qualified acceptance may be made within three months from the date on which he becomes aware of the excess of the inheritance obligation even in cases where a simple approval is deemed granted pursuant to Article 1026 subparag. 1 and subparag. 2 of the Civil Act without gross negligence, as well as where a simple approval is deemed granted pursuant to Article 1019(1) of the Civil Act without knowledge of the excess of the inheritance obligation. Thus, even if the Defendants already disposed of the inherited property through a division of inherited property through an agreement on division of inherited property, the Defendants still can make a qualified acceptance pursuant to Article 1019(3) of the Civil Act, and therefore, the instant adjudication cannot be said to have no effect as a qualified acceptance

3. Nevertheless, the judgment of the court below that the judgment of this case is not effective as a qualified acceptance based on the previous Addenda and Article 1026 subparagraph 1 of the Civil Code, which found that there was an error of law by misunderstanding the legal principles as to qualified acceptance, thereby affecting the conclusion of the judgment (On the other hand, the court below erred by ordering the payment of damages for delay at the rate of 25% per annum by applying the former legal provisions to the period after the amendment by Act No. 6868, May 10, 2003, and in this respect, the judgment of the court below cannot be reversed).

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)