Plaintiff (Attorney Dae-Gyeong et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Jeong, Attorneys Na-young et al., Counsel for the defendant-appellant)

December 16, 2008

Changwon District Court Decision 2006Da32135 Decided October 31, 2007

1. In the judgment of the first instance, the part ordering the implementation of the procedure for ownership transfer registration shall be revoked, and the plaintiff's main claim shall be dismissed;

2. On February 12, 2005, upon the preliminary claim added at the trial, the defendant shall execute the procedure for the registration of ownership transfer on the ground of testamentary gift on each real estate listed in the separate sheet to the plaintiff.

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

1. Purport of claim

(1) The defendant shall pay to the plaintiff 74,923,077 won with 5% interest per annum from March 7, 2005 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

(2) On August 7, 1995, the Defendant primarily filed for the registration of ownership transfer with respect to each real estate listed in the separate sheet (hereinafter “the instant orchard”) with respect to the Plaintiff on the ground of donation on August 7, 1995. In addition, the Plaintiff filed for the registration of ownership transfer on the ground of donation on August 7, 1995 with respect to the instant orchard 1,702 square meters (hereinafter “land before subdivision”). The Plaintiff filed for the registration of ownership transfer on June 25, 2008, which was the first instance judgment, on the ground that the land before subdivision was divided into the instant orchard, the Plaintiff corrected the purport of the claim in the first instance judgment and added it as its main claim, and added it as a preliminary claim).

2. Purport of appeal

In the judgment of the first instance court, the part ordering the implementation of the procedure for ownership transfer registration shall be revoked, and the part of the plaintiff's claim shall

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought to the Defendant on August 7, 1995, the procedure for the registration of transfer of ownership on the land before subdivision, and the Plaintiff sought to return KRW 74,923,077 equivalent to the Plaintiff’s share of inheritance (2/13) among the inherited property, which is the inherited property that the Defendant deemed to have managed, of KRW 487,00,000,000,000, which is the inherited property. The court of first instance accepted the Plaintiff’s claim in full, and the Defendant filed an appeal against the part(2) without filing an appeal against the

Therefore, the scope of this Court's trial is limited to ① the part against which the defendant appealed, that is, the part demanding the implementation of the procedure for ownership transfer registration concerning the instant orchard and the ancillary claim added in the trial.

2. Basic facts

The following facts are either disputed between the parties, or acknowledged by comprehensively considering the overall purport of the arguments in each entry in Gap evidence 1, 2, 3, 6, 9, Gap evidence 19-1, 2, 3, Gap evidence 20-1 through 4, Eul evidence 3, Eul evidence 14-1 through 4:

A. On September 23, 198, the ownership transfer registration under the Defendant’s name was completed with respect to the land before subdivision. Some of the above land was incorporated into a site for urban planning facilities [the urban planning facilities [the 2-9 line] under Article 2006-6 of the Public Notice at Changwon-si on February 9, 2006 and applied for cadastral partition subrogation at Changwon-si on June 3, 2008, each of the above land was subdivided into the instant land on June 25, 2008 (the compensation procedure for each of the lands listed in [Attachment 2 and 3].

B. The deceased non-party 1 (hereinafter "the deceased"), who is the husband of the defendant, died on February 12, 2005. After the deceased's death, the documents containing the following contents were discovered as the title "real estate distribution oil (i.e., the son's pen, No. 14-1 to No. 4; hereinafter "the 14-1 to No. 4)" in the process of disposing of the relics after the deceased's death. While the deceased's certificate of the deceased's personal seal was attached to the distribution oil of this case, the defendant's certificate of personal seal was not attached to the distribution oil of this case, but the defendant's certificate of personal seal was not attached. In the meantime, the distribution oil of this case seems to have been made up two copies. Among them, one part among them was affixed (number No. 2 omitted), (number 3 omitted), and (number 4 omitted), which appears to have been directly prepared by the deceased under the title "survey of current status". The original is all owned by the defendant (No. 14).

Real estate distribution statement (in person's pen)

In order to receive a distribution without objection by the ex post facto awareness of the real estate he currently owned by himself (non-party 1) (non-party 1). Inn (n) two persons do not constitute partial granting of parent heritage on the last day, but in the future, three persons in South-North Korea will help another (non-party 1).

본문내 포함된 표 아 래 소재지 지번 지목 지적 전소유자 분배자(상속인) 비고 창원시 천선동 (지번 5 생략) 과수원 ？ 피고 소외 4 ？ 부산 거제동 (지번 6 생략) 대지(건물) ？ 소외 1 〃 ？ 창원시 안민동 (지번 7 생략) 임야 양지쪽 1/2 〃 〃 ？ 창원시 천선동 (지번 1 생략) 과수원 ？ 소외 1 원고 ？ 〃 (지번 4 생략) 건물, 답(현 대지) ？ 〃 〃 ？ 창원시 안민동 (지번 8 생략) 임야 2정 8단 7무보 〃 〃 ？ 창원시 천선동 (지번 3 생략)(부호 ㄹ) 건물, 답, 대지 155.0㎡ 〃 〃 ？ 창원시 천선동 (지번 9 생략) 과수원 515평 소외 1 소외 5 ？ 창원시 안민동 (지번 7 생략) 임야 음지쪽 1/2 〃 〃 ？ 창원시 천선동 (지번 2 생략) 건물, 답(현 대지) ？ 소외 1 피고 ？ 창원시 천선동 (지번 3 생략)(부호 ㄴ) 〃 ？ 〃 〃 ？ 창원시 천선동 (지번 3 생략) 답 ？ 소외 1 소외 6 지적도 기재와 같다. 〃 (지번 3 생략) 〃 ？ 소외 1 소외 6 〃 (지번 3 생략) 〃 ？ 소외 1 소외 7 ？ 1995. 8. 7. 위와 같이 분배함. 창원시 천선동 (지번 2 생략)번지 유서인 소외 1(인) 상 동 피고(인)

C. The deceased’s heir is the wife of the Defendant (3/13 shares in inheritance) and the wife Nonparty 2, the female Nonparty 3, the male and female Nonparty 4, the male and female Nonparty 4, the male and the third male and Nonparty 5 (the shares in inheritance 2/13, respectively), and Nonparty 6 and 7 were born between the Plaintiff and the former wife.

D. After the death of the Deceased, Nonparty 2 filed a lawsuit against the Defendant for the return of KRW 76,923,076 equivalent to his/her share of inheritance (2/13) against the Defendant’s fixed deposit claims, etc. of the Deceased, which was managed by the Defendant, at the Changwon District Court Decision 2005Da39481, and was sentenced to the judgment of dismissal of the Plaintiff on August 9, 2006 from the first instance court, but was sentenced to the judgment of partly winning the Plaintiff on February 9, 2007 from the appellate court ( Busan High Court Decision 2006Na16833). The Defendant appealed on May 10, 2007, but the above judgment became final and conclusive (Supreme Court Decision 2007Da17857).

3. Judgment on the main claim

A. The plaintiff's assertion

The land of this case is acquired by the deceased and is in fact owned by the deceased and is in fact owned by the deceased. The deceased and the defendant frequently made a statement that “the instant orchard shall be donated to the plaintiff,” and the deceased expressed their intent to donate the instant orchard to the plaintiff on August 7, 1995, which is the date of preparation of the distribution oil of this case, and the plaintiff expressed his intention to donate the instant orchard to the plaintiff, and the defendant affixed his seal on the distribution oil of this case with their consent. This constitutes a written donation contract.

Therefore, the defendant is obligated to implement the registration procedure for transfer of ownership on August 7, 1995 with respect to the instant orchard to the plaintiff.

B. Determination

First, as to whether the instant orchard was held in title trust with the Defendant as the ownership of the Deceased, the statement of No. 15 and the testimony of Non-Party 2 by Non-Party 1 as shown in the Plaintiff’s assertion are not trusted, and as seen earlier, it is insufficient to recognize the instant orchard solely on the grounds that the owner of the instant orchard was recorded as the Deceased, and there is no other evidence to acknowledge it. Rather, in view of the testimony of Non-Party 4 and Non-Party 8 of the first instance trial witness and the overall purport of the Defendant’s arguments as to whether the instant orchard was held in title trust with the Defendant as the ownership of the Deceased, it appears that the Defendant was also deemed that there was considerable income, such as boom, sub-party 4 and Non-Party 8 of the first instance trial witness, and operating a restaurant at the place of the

Next, as to whether the Plaintiff and the Defendant entered into a gift contract with respect to the instant orchard on August 7, 1995, the Plaintiff and the Defendant indicated the following as follows: (a) evidence Nos. 3 and Nos. 14-1 and 2 as evidence that seem to conform to the Plaintiff’s assertion; and (b) the fact that the seal affixed to the part of the Defendant’s name in the distribution slip of this case is based on the seal of the Defendant, or that the seal affixed to the part of the Defendant’s name in the distribution slip of this case is either a dispute between the parties, or it is recognized by

However, the defendant's assertion that the part of the defendant's name in the distribution oil of this case was made by stealing the seal of the deceased. Thus, it is acknowledged by the evidence as follows: ① The distribution oil of this case was made public only after February 12, 2005 when the deceased died; the plaintiff was unaware of the existence of the distribution oil of this case before that time; ② the plaintiff himself recognized that his family, including the plaintiff and the defendant, do not have the right to gather (if the plaintiff and the defendant do not have the right to gather together, the donation contract was made on the date on which the plaintiff asserts), ③ The defendant's certificate of seal is attached to the distribution oil of this case, and the part of the defendant's name appears to have been recorded in the defendant's personal information, etc. (the whole part of the defendant's statement is identical); ④ The defendant's testimony is not made in accordance with the defendant's presumption that the defendant's signature of this case was not made, and the part of the defendant's signature of this case was not made as evidence.

Meanwhile, it is insufficient to recognize that the Defendant, which was recognized by the statements Nos. 1 and 13-1 and 2 of evidence Nos. 1 and 13, had concluded a donation contract on August 19, 198 with respect to the instant orchard, on the ground that the registration of ownership transfer was completed on April 13, 2005 with respect to the Defendant on the gift on April 12, 2005, after completing the registration of ownership transfer on the instant orchard (the cement brick slive roof slive roof, and 90.36§³) and on August 7, 1995, on the sole basis of the statement of evidence No. 17, it is insufficient to recognize that the Plaintiff and the Defendant concluded a donation contract on August 7, 1995 with respect to the instant orchard, and there is no other evidence to support the Plaintiff’s assertion otherwise (the Plaintiff’s expression of intention to “the instant orchard will to the Plaintiff,” and even if the Plaintiff’s intent to cancel the donation contract was accepted in writing.

Therefore, the plaintiff's primary claim from another premise is without merit.

4. Determination on the conjunctive claim

A. The plaintiff's assertion

The instant report prepared by the deceased constitutes a will. The content of the instant report refers to the legacy of the instant orchard to the Plaintiff. Even if the instant orchard was owned by the Defendant and no validity as testamentary gift exists because it does not belong to the deceased’s inherited property, in light of the fact that the deceased’s heir acquired real estate or disposed of real estate in accordance with the content of the instant distribution report and received the proceeds of sale, the deceased should be deemed to have had the intent to have the effect of a will even in the event that the instant orchard was not inherited property at

Therefore, pursuant to the proviso of Article 1087 of the Civil Act, the defendant, as a partner, is obligated to implement the registration procedure for transfer of ownership on February 12, 2005, which is the date of death of the deceased as to the instant orchard, to the plaintiff.

(b) Fact of recognition;

The following facts are acknowledged in light of the evidence Nos. 1, 2, 8, 10, 12-1, 2, 13-1, 2, 3, and 14-1, 2, 4, 6-1, 2, 7, 8, 9-9-1, 2, 3, 10, 13-1, 13-2, 13-2, and 1, 2, 3, 14-1, 4, 6-1, 6-2, 7, 8, 9-2, 9-3, 10, 10-1, and 13-2, and the overall purport of the arguments.

(1) The Deceased told the Plaintiff that “The instant orchard would bring the instant orchard to Nonparty 4, and that “The instant orchard would bring the instant orchard to Nonparty 5, respectively, (number 9 omitted) in Changwon-si’s inciting Changwon-si, and Nonindicted 5, respectively.”

(2) After the Plaintiff’s marriage, the Deceased caused the Plaintiff to institute a lawsuit against an unauthorized building on the ground (number 2 omitted), (number 3 omitted), and (number 4 omitted) on the ground.

(3) Of the forests and fields distributed to Nonparty 4 in Changwon-si, Changwon-si (Road Number 7 omitted), 1/2 of the forests and fields distributed to Nonparty 4 is occupied and managed by Nonparty 4, and 1/2 of the sound, distributed to Nonparty 5, respectively, by Nonparty 5. The forests and fields distributed to the Plaintiff are occupied and managed by the Plaintiff in Changwon-si, Changwon-si (Road Number 8 omitted).

(4) The Plaintiff received delegation from Nonparty 5. On August 22, 2001, the deceased provided that the Plaintiff shall pay the maximum debt amount of KRW 56 million to the above orchard, the creditor shall be the Changwon Agricultural Cooperative, and Nonparty 5 shall lend the money to Nonparty 5 with the purchase of the orchard located in Jingu-si, Jin-si, Kim Jong-si. In short, on August 22, 2001.

(5) (A) On April 16, 2003, the deceased sold the above instigates (number 2 omitted), (number 3 omitted), land (number 4 omitted), etc. to the Housing Construction Co., Ltd., and then divided the amount of KRW 50 million to Nonparty 2 and 3, who is his father, respectively, and KRW 60 million to Nonparty 5. Of the above sales price, on April 16, 2003, the deceased completed the registration of ownership transfer under the name of the Plaintiff and Nonparty 4 (number 11 omitted), each of the following answers, which was purchased from the above sales price, KRW 20 million in Changwon-gu, Changwon-gu, Seoul Special Metropolitan City (number 10 omitted), Seowon-gu, Changwon-si, Changwon-si, Busan Special Metropolitan City (number 12 omitted), the answer, number 13 omitted, and the Plaintiff and Nonparty 4 (number 13 omitted) in the name of each of the Plaintiff and the deceased.

(B) On March 22, 2003, the deceased purchased the building site and the second floor in the name of the defendant and completed the registration of ownership transfer in the name of the defendant on March 22, 2003, the deceased made a statement to the effect that “Issia 6 and 7 of the plaintiff later after the defendant purchased the building site and the second floor in the name of the defendant (number 2 omitted),” (number 2 omitted), (number 3 omitted), (number 4 omitted), and (number 4 omitted) sale proceeds of the land, etc., such as the sale proceeds of the above instigates (number 2 omitted), (number 3 omitted), (number 4 omitted), and (number 4 omitted, which remains in the part of the sale proceeds of the land, etc., and managed by the defendant after the death of the deceased).

(6) On the other hand, on May 2, 2003, the deceased sold the land, etc. (number 6 omitted), etc. to Nonparty 9 and 10, and purchased on December 29, 2003 the answer (number 15 omitted) for the sale price, and completed the registration of ownership transfer in the name of the defendant on January 13, 2004. On February 17, 2007, the defendant completed the registration of ownership transfer with Nonparty 4 on the ground of donation on the 15th of the same month.

(7) On March 14, 2007, the Defendant completed the registration of ownership transfer made to Nonparty 4 on March 14, 2007 on the ground of donation of the same day with respect to the instant orchard (number 5 omitted) in which the Defendant owned it.

C. Determination

(1) Whether the letter of distribution of this case constitutes a will, etc.

A will shall not take effect unless it is in accordance with the method prescribed by the Civil Act (Article 1060 of the Civil Act), and according to the above, it is recognized that the deceased prepared the full text, date of preparation, address (the deceased and the defendant's address), and the seal is affixed to the deceased. As such, the share distribution of this case shall have the method of a will under Article 1066 of the Civil Act, and the phrase "to be distributed without objection," stating that "I will be distributed after the death (the share distribution of this case is only made by the deceased, and there is no effect as the defendant's will)."

(2) Whether the deceased had a will with respect to the orchard of this case (whether the proviso of Article 1087 of the Civil Act applies)

Since the instant orchard is owned by the Defendant, barring any other circumstances, the instant orchard’s distribution of the instant orchard, which was the subject of a will, constitutes a case where the instant orchard, which was the subject of a will, does not belong to the inherited property on February 12, 2005 (main sentence of Article 1087 of the Civil Act).

Furthermore, at the time of the death of the deceased, it is recognized that the non-party 2 had the intention to have the above her will effective even though the deceased did not belong to the inherited property. The above evidence and the purport of the statement No. 18 were added to the deceased's total statement before his birth. ① It is found that the deceased's head of the instant orchard is actually divided into the plaintiff's share of the property. ② The non-party 4 and 5, who were the Plaintiff's punishment, completed the registration of ownership transfer or disposed of the ownership transfer and received the sale price by the non-party 6 and the non-party 7's sale of the above land (number No. 2 omitted), but it is difficult to view that the non-party 4 and the non-party 4 were disposed of before the birth of the deceased (number No. 3 omitted), and that the non-party 2 purchased the above land lot number for the non-party 3's sale of the deceased's land as the sale price for the non-party 2's sale of the land.

(3) The scope of the defendant's obligation to transfer ownership

As seen earlier, the deceased bequeathed the instant orchard to the Plaintiff by his will. As such, the effect of February 12, 2005, which was at the time of the deceased’s death, took effect on February 12, 2005. Unless there is no evidence that the deceased either designated the executor by his will or entrusted the designation to a third party, the deceased’s inheritor becomes the executor (Article 1095 of the Civil Act).

In addition, the deceased's heir, as seen earlier, has children of the deceased other than the defendant, but if there are several inheritors, all the inheritors naturally will be the executor of the will, and one of several executors is the executor of the will and all the inheritors are the executor of the will, and they do not handle the affairs for their share of inheritance for all. Thus, the heir is one of the executor of the will and the defendant, the owner of the orchard of the instant orchard, who is the owner of the instant orchard, is liable to implement the registration procedure for transfer of ownership for testament on February 12, 2005 for all of the instant orchard to the plaintiff.

D. Defendant’s assertion and judgment

(1) The argument

(A) After preparing a written claim for distribution of this case, the deceased made several statements to the effect that "the plaintiff shall not have any property with a percentage of interest on the plaintiff's property". This is similar to the case where a will under Article 1108 of the Civil Act is withdrawn or where a testator has expressed another will" under Article 1086 of the Civil Act, and thus, the share distribution of this case has no effect.

(B) The Plaintiff inflicted an injury upon the Deceased, which constitutes grounds for disqualification pursuant to Article 1004 of the Civil Act, which applies mutatis mutandis by Article 1064 of the Civil Act.

(C) In the first instance court, the Plaintiff received a favorable judgment by filing a claim for refund of KRW 74,923,077 in one’s share of inheritance among the sales proceeds of the land, such as the above instigates (number 2 omitted), (number 3 omitted), (number 4 omitted), and (number 4 omitted) land, etc., which was managed by the Defendant. Since the Plaintiff voluntarily denied the validity of the share of the distribution of this case, it is not permissible in light of the principle of the gold-competing, allowing the Plaintiff to file the instant claim with the Defendant by asserting the validity of the new share of distribution of this case.

(2) Determination

(A) Whether the will has been withdrawn

In light of the above evidence and evidence Nos. 3, 4, 11, and 12 of the evidence and the fact-finding with the chief prosecutor of the original prosecutor's office at the original prosecutor's office at the political party, the plaintiff committed an injury, such as having the deceased go against on May 2, 2001, on the part of the deceased's inside and outside of the body of the body of the deceased at around 01:30 on Nov. 23, 2001, after being notified of a summary order of KRW 1 million on Nov. 23, 2001, which became final and conclusive on Jan. 18, 2002, and that "the plaintiff does not need to pay money to the plaintiff who gets off the body of the deceased."

However, in light of the following facts: (a) the deceased appears to have made the above remarks on the calculic lag, and (b) on April 16, 2003, the Plaintiff purchased the calcule Eup (number 10 omitted), which was subsequent to the Plaintiff’s calculation, and completed the registration of ownership transfer in the future of the Plaintiff as to the 1/3 portion of the 1/3 portion of the calcule; (c) there is insufficient evidence to acknowledge that the deceased withdrawn his will on the sole basis of the above circumstances, the witness Nonparty 8’s testimony, and the result of the Defendant’s personal examination on the part of Nonparty 8 of the trial party, and there is no other evidence to acknowledge this otherwise; and (d) there is no room to apply Article 1086 of the Civil Act to this part of the Defendant’s assertion.

(B) Whether the Plaintiff is disqualified for testamentary gift

Article 104 Subparag. 2 of the Civil Act, which is applicable mutatis mutandis by Article 1064 of the Civil Act, provides that “a person who causes death by causing bodily injury to a lineal ascendant, the inheritee or his or her spouse” as disqualified for testamentary gift. The above provision is only applicable to cases of death caused by intentional injury, and does not constitute grounds for disqualification merely by causing bodily injury. There is no evidence that the Plaintiff intentionally inflicted bodily injury on the deceased and caused death. Thus, this part of the Defendant’s assertion is without merit.

(C) Whether the claim of this case is against the opposite speech or not

Of the sale price of land, etc., which was bequeathed to the plaintiff and his children to the non-party 6 and 7 pursuant to the distribution oil of this case, the above inciting (number 2 omitted), (number 3 omitted), (number 4 omitted), and (number 4 omitted) were disposed of before the deceased's birth and used to purchase distributed real estate, and eventually, the sale price remains 487 million won out of the sale price. In such a situation, the non-party 2 asserted his share of inheritance and filed a lawsuit against the defendant. As such, the plaintiff can be seen to have claimed the return of money equivalent to his legal share of inheritance at the court of first instance (number 2 omitted), (number 3 omitted), (number 487 million, which was disposed of by the defendant, and (number 4 omitted), it is difficult to view that the plaintiff disposed of the property of this case against the principle of claim for return of the property of this case (refer to the judgment of this case) by the court of first instance to the non-party 580 million won, which was disposed of the property of this case.

(D) The defendant's assertion is without merit.

5. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the supplementary claim is accepted as it is reasonable. Since the judgment of the court of first instance which accepted the plaintiff's primary claim is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and the plaintiff's primary claim is dismissed, and it is so decided as per Disposition by ordering the defendant to implement the procedure for registration of ownership transfer upon the preliminary claim raised in the trial.

[Attachment]

Judges Lee Young-young (Presiding Judge)