[1] In a case where a lineal descendant who is to become an inheritee and his/her heir have died simultaneously, whether the spouse of his/her lineal descendant may inherit by representation (affirmative)

[2] In a case where there is no other lineal descendant of the person under relationship with the other person under relationship, whether the spouse of the person under relationship with the other person under relationship may succeed to the other person (affirmative)

[1] Article 1001 of the Civil Code, which recognizes the spouse's right of inheritance on behalf of the lineal descendant, provides that "where a lineal descendant who will be a successor dies before the commencement of the inheritance," the lineal descendant who will be a successor shall be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to inherit by protecting the expectation of inheritance to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be fair and equitable by ensuring the livelihood of the surviving spouse, and in particular to be able

[2] The phrase "in the case of Article 1003 (2) of the Civil Code, which provides for the spouse's right to inheritance by representation, refers to the case where a lineal descendant who will be the inheritor dies before the commencement of the inheritance," and even in the case where "in the case of inheritance by representation under Article 1001" is interpreted as "in the case where a lineal descendant who will be the inheritor dies before the commencement of the inheritance," if a lineal descendant is living by substitute, his children shall not be the principal heir of the inheritee but the property of the inheritee under Article 1001 of the Civil Code, as they succeed to the property of the inheritee as a substitute heir under Article 1001 of the Civil Code, so such interpretation is consistent with the legislative purport that recognizes the spouse's right to inheritance by substitute, so it is possible to inherit by substitute even if there is no other lineal descendant such as the substitute and relatives, etc.

[1] Articles 1001, 103 (2) and / [2] Articles 1001, 103 (2) of the Civil Act

Plaintiff 1 and 6 others (Law Firm Han-dong, Attorneys Yu-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Hy Chang-soo et al., Counsel for the defendant-appellant)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant held that the defendant shall comply with the procedure for cancelling the registration of cancelling the transfer of ownership, which was made on November 8, 1997 by the Gangnam-gu Seoul Metropolitan Government Branch of the Seoul District Court with respect to the size of 470.4m2, Yangcheon-gu, Seoul Metropolitan Government (number omitted).

1. Facts acknowledged without dispute;

The deceased non-party 1 (hereinafter referred to as the "the deceased") died on August 6, 197 with the deceased non-party 2, the deceased's wife, the deceased non-party 3 and the deceased's children, the deceased non-party 4, the deceased non-party 5, the above deceased non-party 4's wife, the deceased non-party 6, the deceased non-party 7, the deceased non-party 3's children, and the deceased non-party 7, the above deceased non-party 3's children, and the deceased non-party 8, the deceased non-party 3 at the same time, and there are no other lineal descendants or ascendants of the deceased at the time of the above death. The plaintiffs are the deceased's husband and the defendant is the husband of the deceased and the defendant registered the ownership transfer of the deceased's claim on the grounds of inheritance of the real estate (hereinafter referred to as "real estate of this case"). There is no dispute between the parties concerned.

2. Determination on the plaintiffs' claims

(a) Details of the request;

The plaintiffs and lineal descendants of the deceased died at the same time as that of the deceased, and their lineal ascendants did not exist at the time of the deceased's death, and the above non-party 3, the defendant's wife, as well as the above non-party 4, who is the lineal descendants of the same kind as the above non-party 3, also died at the time of the deceased's death, and the defendant cannot receive inheritance by representation. As such, the plaintiffs who are the brothers and sisters of the deceased succeeded to the property of the deceased including the real estate of this case pursuant to Article 1000 (1) 3 of the Civil Act, and the defendant asserted that the defendant, who was not the heir of the deceased, took part in the status of the deceased and took part in the inheritance of the real estate of this case, and claimed that the procedure for the registration of cancellation of ownership transfer as stated in the purport of the claim should be implemented by the defendant, who referred

B. Determination on claims

(1) Whether inheritance by representation is possible in the case of simultaneous death

Article 101 of the Civil Act cited in Article 1003(2) of the Civil Act, which recognizes the spouse's right to inheritance by representation, provides that "where a lineal descendant who will be a successor dies before the commencement of the inheritance," the lineal descendant who will be a successor, as in this case, may not be inherited by representation in the case of "where a lineal descendant who will be a successor dies at the time of the commencement of the inheritance." However, in light of the purport of the inheritance system, which protects the expectation of inheritance by substitute and aims to promote fairness and equity by protecting the surviving spouse's livelihood and in particular, it is remarkably unfair and unreasonable to exclude the spouse from the inheritance where a lineal descendant who will be a lineal descendant who will be a heir at the time of the commencement of the inheritance is deceased before the commencement of the inheritance or after the commencement of the inheritance. Therefore, it is reasonable to interpret that "where a lineal descendant who died before the commencement of the inheritance," as mentioned in Article 1001 of the Civil Act, includes the case where a lineal descendant who died at the time of the commencement of inheritance at the time of the deceased's spouse.

(2) Where there is no other lineal descendant of the person under whose relationship with the other person under whose relationship with the other person under whose relationship with the other person under whose relationship

(A) As acknowledged in the above 1., the above non-party 3 and the non-party 4, who are lineal descendants of the above non-party 1, died, and there is a question as to whether it is possible to inherit by inheritance even in the absence of other lineal descendants of the person under whose relationship with the above non-party 3 and his/her relatives. The plaintiffs asserted that the above non-party 7 and the non-party 8, who are the lineal descendants of the above non-party 3, live in the above case, are the non-party 7 and the non-party 8, who are the non-party 8, and the non-party 100, Paragraph 1, Item 1, Article 1000 of the Civil Act, which is not the inheritance by inheritance by substitute and the defendant is unable to inherit by substitute, and therefore there is no possibility that there is no other lineal descendant, such as the non-party 1 and the non-party 8, who will be a lineal descendant, if there is no other lineal descendant.

(B) However, the phrase "in the case of Article 1003 (2) of the Civil Code, which provides for the spouse's right to inheritance on behalf of the heir, refers to the case where a lineal descendant who will be the inheritor dies before the commencement of inheritance." This interpretation also accords with the legislative purport of recognizing the spouse's right to inheritance on behalf of the heir, in case where the above non-party 7, 8 live together as the above non-party 7, and the above non-party 8, such as the above case, if the non-party 7, and the non-party 8 live on behalf of the deceased, not as the principal heir of the deceased, but as the substitute heir of Article 1001 of the Civil Code, the defendant who is the spouse of the above non-party 3, can inherit on behalf of the deceased. This interpretation also accords with the legislative purport of recognizing the spouse's right to independent inheritance on behalf of the deceased.

(C) Therefore, it is possible to inherit by representation even where there is no other lineal descendant of the person under whose relationship with the other person under whose relationship with the other person.

(3) Whether an inheritance by representation is possible if a result violates the principles of inheritance by blood.

In this case, if the defendant inherited the deceased's property by proxy, all lineal ascendants and siblings of the deceased cannot inherit the deceased's property at all, which is a problem of whether it is against the principle of inheritance by blood relatives in our country. However, if the above non-party 4, who is the lineal descendants of the above non-party 3 and his relatives, etc., live in this case, the defendant inherited the deceased's property by proxy at the ratio of 1/2, and even in this case, the lineal ascendants and siblings of the deceased cannot inherit the deceased's property at all, and the deceased's spouse's lineal ascendants and sisters's lineal descendants priority over the deceased's lineal ascendants and siblings. Thus, as long as our Civil Act provides for the spouse's right of inheritance by proxy, the principle of inheritance by blood relatives in our traditional style would have considerably decreased within the scope of the spouse's right of inheritance by proxy. Accordingly, in this case, the defendant cannot deny the right of inheritance by proxy of the deceased itself only because of the death of the above non-party 4, who is the lineal descendants of the above non-party 3 and relatives.

(4) Conclusion

Thus, the defendant is the spouse of the above non-party 3 who died as the deceased at the time of the death of the deceased, and pursuant to Articles 1003(2) and 1001 of the Civil Act, inherited the deceased's property on behalf of the deceased. As such, the plaintiffs, brothers and sisters of the deceased, cannot receive any inheritance on the deceased's property. Thus, the plaintiffs' claims of this case seeking the defendant to implement the procedure for registration of cancellation of ownership transfer registration, which has been completed as stated in the purport of the claim regarding the real property of this case

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed, and the burden of litigation costs is decided as per Disposition by applying Articles 89 and 93 of the Civil Procedure Act to the burden of litigation costs.

Judges Lee Jae-soo (Presiding Judge)