The case holding that a claim for recovery of inheritance does not constitute a lawsuit

The claim does not seek cancellation of the ownership transfer registration under the name of “A” who acquired the forest by transfer from Nonparty B on the ground that the cause of the claim is Nonparty B, but rather, Nonparty B forged the registration document without any authority and completed the ownership transfer registration under its name. Thus, the lawsuit seeking cancellation of the registration and the above registration of transfer of ownership under the name of “A” and “A” cannot be deemed to constitute a lawsuit seeking inheritance recovery on the ground that each of the above registration and the registration were invalid.

Articles 982 and 99 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 8514, Jan. 26, 1982) (Law No. 77356, Feb. 11, 1986; Law No. 851, Feb. 11, 1986; Law No. 7746, Feb. 16, 1996)

Plaintiff

Defendant

Busan District Court (81 Gohap1615)

The appeal is dismissed.

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

On July 20, 1976, the registration of transfer of ownership was completed by Busan District Court No. 28604, Jun. 24, 1976, with respect to forest land 20,231 square meters (20,000 square meters) from Busan Seo-gu (20,000 square meters) to the Plaintiff.

Litigation costs shall be borne by the defendant.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. Judgment on the main defense of this case

Since the defendant asserts that the lawsuit of this case is unlawful since the plaintiff was already dead at the time when the lawsuit of this case was brought, it is identical to the defendant's evidence Nos. 4 (No. 13-4 and No. 20) without dispute over its establishment, Gap evidence No. 6-1 (a certificate of delegation of lawsuit), 2 (a certificate of delegation of lawsuit; 3-4, 4 (the same shall apply to the certificate No. 3-5; 3-5; 3-2; 13-2; 3-2, the same shall apply to the certificate of completion of citizen registration; 3-2), 6 (issuance of national registration completion certificate; 3-1 through 5 (the mark and contents of the certificate No. 3-5), Gap evidence No. 18-18 (the mark and contents of the certificate), Gap evidence No. 19 (the above evidence No. 19-2).

2. Judgment on the merits

As to the forest land of this case originally owned by the deceased non-party 1, the registration of ownership transfer based on the registration No. 4715 of Busan District Court No. 11 on September 12, 1970 shall be completed in the name of non-party 2 on the 11st of the same month, and the registration of ownership transfer based on the above court No. 8204 on February 22, 1971, the registration No. 3 of the non-party 3 corporation (the process of mutual change) was completed on the 19th of the same month, and the registration of ownership transfer as described in the purport of the above No. 4, Gap evidence No. 6-3 through 6, Gap evidence No. 1 (the transcript No. 3; the transcript No. 1), Gap evidence No. 2 (the transcript No. 3); the remaining transcript No. 1 (the transcript No. 1) evidence No. 70) and the copy No. 1 (the copy No. 3) evidence No.

(1) On April 2, 1950, the non-party 1, who had a permanent domicile in Seo-gu Busan (Seongsan omitted), died;

(2) 망 소외 4는 1913.2.6. 위 본적지에서 소외 1의 장남으로 태어나 16세 되던 해에 가출하여 만주지방을 거쳐 1932.10월경 일본으로 건너가 각지를 전전하다가 8.15해방 당시 니이가다현(신석현) 지방에 정착하여 (이름 생략)란 일본명과 소외 4 또는 소외 5란 한국명을 동시에 사용하면서 일본여인 후나미 후사(주견 후사)와 사실상 혼인관계를 맺고 동거하던중 그들 사이에서 1946.7.2. 원고를 출산하자 그 생모인 위 후나미 후사로 하여금 같은 달 14. 원고에 대한 출생신고를 하게 하면서 일본 민법상 비적출자인 원고를 모가에는 호주(위 후나미 후사의 조카인 주견국웅)의 동의를 얻지 못하여 입적시키지 못하고 일본 국내법에 따라 본적 "신석현중경성군 신정정 대자고류 (번지 생략)", 씨명 " (생략)"으로 일가 창립을 하여 일본호적에 등재되게 하였고, 1948.7.4. 다시 소외 6을 출산하자 역시 위 후나미 후사로 하여금 같은 해 10.6 동인을 비적출자로 출생신고를 하게 하여 그 신고에 의하여 생모인 위 후나미 후사에 관한 본적을 "같은 전대자소출운 (번지 생략)"로 한 호적을 편제한 후 " (씨명 생략)"이란 씨명으로 그 호적에 등재되게 하였으며, 그후 1950.1.19.에는 원고 및 소외 6에 대한 인지계를, 같은 달 21.에는 위 후나미 후사와의 혼인계를 일본 국내법에 따라 그의 소재지 관할 호적공무원인 아라이정장(신정정장)에게 각 제출하면서 그 인지계 및 혼인계에 인지자 및 계출인의 표시를 조선 경남 부산부 (상세번지 생략)에 본적을 둔 소외 1와 같은 호적에 등재된 1915.1.1.생의 소외 5로 기재하였고 그로 인하여 원고, 소외 6 및 후나미 후사 등 3사람의 가족을 일본호적에서는 제적되게 하였으나 입적될 소외 4의 한국호적의 본적 및 호주표시의 착오(이는 고향을 떠난지 오래되어 기억이 희미해졌음은 물론 호적에 대한 관심도 적었을 뿐만 아니라 해방후 우리나라 행정구역 및 명칭변경등의 사유로 인한 것으로 보인다)로 소외 4의 호적에는 입적시키지 못한 채 1956.4월경 시즈오까시(정강현 정강시 전정7정목 관유무번지)로 이사하여 생활하다가 1960.12.7. 재외국민등록법(1949.11.24. 법률 제70호)에 따라 주일 대한민국 대사관에 등록번호 제1838호로 재외국민등록을 하였고, 1964.6.2. 소외 7을 출산하여 같은 달 10. 그 소재지 관할 시즈오까 시장에게 출생신고를 하였으며, 같은 해 9.3. 일본 외국인등록법에 따라 시즈오까시역소에 가족들과 함께 등록번호 11 제296052호로서 씨명 소외 5, 생년월일 1914.8.1.생, 본적지 경남 부산부 (상세번지 생략)로 외국인등록을 하였다가(위 갑 제12호증에는 1965.9.14. 등록번호 8 제226151호로 등록한 것으로 기재되어 있으나 착오기재 또는 이중등록으로 보인다) 그후 1962.11.13.자 법관등 제8077호 허가에 의하여 씨명을 소외 4로, 생년월일을 1913.2.6.로, 본적지를 경남 부산시 (상세번지 생략)로 위 외국인등록부의 기재를 호적기재와 일치되게 정정하였고(위 갑 제7호증에 기재된 소외 4 명의의 소유권이전등기 접수일자인 1964.9.24. 이전에 정정한 것으로 보인다), 1967.1.16. 주요코하마 대한민국 영사관에 등록번호 요코시즈(횡정) 제649호로 성명 소외 4, 생년월일 1913.2.6.생, 본적 경남 부산시 (상세번지 생략), 출생지 경남 부산부 (상세번지 생략)으로 하여 재외국민갱신등록을 하여(이때 원고도 독립된 세대주로서 등록번호 요코시즈 제651호로 재외국민등록을 하였다) 가족들과 함께 생활하다가 1977.5.14. 사망하였고(사망신고는 같은 날 원고가 소재지 관할 시즈오까 시장에게 하였다), 위 후나미 후사(위 혼인신고로 인하여 남편의 성을 따라 김후사로 되어 있었다)와 소외 7은 그 직후인 1977.11.28. 귀화절차를 밟아 일본국적을 회복 및 취득한 사실(그 동안 소외 4의 가족 4명은 호적부에는 등재되지 못한 채 그들에 대한 각종 신고서만 위 시즈오까시역소에서 접수하여 보관하고 있었던 것으로 보인다),

(3) After that, on May 9, 1980, the plaintiff was the person to be entered in the family register of the non-party 4 on the ground that it had not been entered in the family register on the ground that it had not been entered in the family register, the plaintiff applied for the adjustment of the family register in accordance with the Act on Special Cases Concerning the Establishment of Overseas Koreans, the Correction of Family Register and the Adjustment of Family Register (Act No. 2622 of June 21, 1973) and entered the name of the non-party 4 into the non-party 4's family register as a child born out of wedlock (the non-party 1 had been cancelled on April 4, 1950 by his own report of the non-party 8's family register, but the head of the Si/Gu of Busan without the permission of the supervisory court on April 10, 1976, which made the non-party 4 to be the head of the family register to be entered in the non-party 4's family register, which had not been entered in the above correction of the plaintiff's family register.

(4) Meanwhile, it is believed that there is no separate problem because, around 1960, the deceased non-party 1-3 South who was detained in Japan on March 2, 1968 and was forced to purchase the forest of this case, the non-party 2, who was a co-defendant of the court below, was the head of the above deceased's family in Japan and lived with his wife, and confirmed that he did not intend to return home to the non-party 4, who was the head of Australia and the property heir, as seen earlier at the time of Japan, and there is no separate problem. The fact that the non-party 1's seal and related document were forged on September 11, 1970 by using the above deceased's death for twenty (20) years after the death or the inheritance registration of the forest of this case was not completed on September 11, 1970, and completed the registration of the transfer of the above plaintiff's forest of this case from the non-party 1 to the non-party 3 corporation 1,450,000 won.

(5) In addition, Nonparty 4, the deceased head of the deceased non-party 4, the above non-party 1, the deceased non-party 5, the deceased non-party 1, and the deceased non-party 8, the second non-party 5, the deceased non-party 1, the deceased non-party 4, and the deceased non-party 9, the deceased non-party 1, the deceased non-party 4, the deceased non-party 1, the deceased non-party 5, the deceased non-party 9, the deceased non-party 1, the deceased non-party 4, the deceased non-party 9, the deceased non-party 9, the deceased non-party 1, the deceased non-party 4, the deceased non-party 5, the deceased non-party 9, the deceased non-party 1, the deceased non-party 4, the deceased non-party 9, the deceased non-party 9, the deceased non-party 9, the deceased non-party 1, the deceased non-party 9, and the plaintiff 1, the deceased non-party 98.

In addition, Article 18 (1) of the Family Register Act provides that "if a Korean national is a child born out of wedlock, the requirements for recognition shall be determined by the law of nationality of the father or mother at the time of recognition, and shall be determined by the law of nationality of the child at the time of recognition," so that only the actual requirements for recognition shall be applied to the method of recognition, and Article 8 (1) of the above Act provides that "the method of legal act shall be effective, regardless of the provisions of the above law of place of action," and Article 8 (2) provides that "the method of recognition shall be effective, regardless of the provisions of the above law of place of action, the method of recognition shall be determined by the law of place of marriage between the plaintiff and the non-party 1 and the non-party 4, which is the law of place of origin of the child born out of wedlock, shall be applied to the non-party 4, who is the law of place of marriage, and the method of recognition shall also be determined by the law of place of marriage of the plaintiff and the non-party 4.

Therefore, the non-party 1 died on April 2, 1950 and died on May 14, 197, and the non-party 4, his head of the family and the inheritance of the property were jointly inherited by the plaintiff et al., who is his wife according to the legal inheritance of the registry of the Civil Code prior to the amendment. Unless there are other circumstances, the registration of the transfer of ownership in the name of the non-party 2 and the registration of the above transfer of ownership in the name of the non-party 3 corporation and the defendant, which was made based on the above transfer of ownership in the name of the non-party 2 and the above transfer of ownership in the name of

The defendant's act of acquiring the above-mentioned forest land was 8 years old and later cancelled on September 1, 1945, the non-party 1's death before the death of the non-party 1 (the plaintiff was not born at that time, and the non-party 8 was not in a position to succeed to the forest land). The non-party 1's death before and after the death of the non-party 1 and the non-party 9's non-party 9's non-party 1's non-party 1's non-party 1's non-party 8's non-party 1's non-party 9's non-party 1's non-party 1's non-party 6's non-party 1's non-party 9's non-party 1's non-party 1's non-party 6's non-party 1's non-party 1's non-party 1's non-party 6's non-party 9's non-party 1's non-party 2's non-party 9's non-party 1's.

Next, on April 2, 1950, the date of death of Nonparty 8, the deceased non-party 1, the defendant believed to have succeeded to the property of the deceased non-party 1 by alone, and occupied the forest land of this case in peace and openly with the intent to own it, and acquired it by prescription around April 2, 1970, when 20 years passed since the death of the deceased non-party 1, the defendant confirmed the act of disposal of the non-party 2 around May 24, 1976. Thus, according to each of the above evidence, the defendant argued that the non-party 8 did not acquire the ownership of the forest of this case for 20 years since the death of the deceased non-party 1 as well as the right of possession of the forest of this case under the premise that the non-party 1 did not acquire the ownership of the forest of this case for 20 years since the death of the deceased non-party 1 as well as the right of possession of the forest of this case.

In addition, on February 22, 1971, the defendant started possession of the forest land from the time it was registered as the owner of the forest land of this case with its intention. On July 20, 1976, the defendant occupied the ownership transfer registration under his name, and occupied it in good faith and public performance without negligence, and on February 22, 1981, the ownership of the forest land of this case was acquired by prescription of 10 years after the lapse of 7 years from February 2, 1971. The above transfer registration under the name of the defendant's title to the forest of this case was made in accordance with the substantive relation. The defendant's above transfer registration under the name of 197 was made without any dispute between the non-party 3 and the defendant as to the above forest of this case. The defendant's transfer registration under the name of 197 of this case was made in Busan High Court for the same time as the above 19-year period of time and the purport of 20-year transfer registration under the name of the defendant's 1 to the above.

In addition, although Nonparty 4 succeeded to the property of the deceased non-party 1, the defendant argued that even if he died from April 2, 1950 when the inheritance commenced, his right to inherit the forest of this case was renounced or his right to inherit the forest of this case was invalidated because he did not exercise his right to inherit the forest of this case for 27 years until May 14, 197 when he died, and even if not, the non-party 4 did not exercise his right to the forest of this case for a long time, the non-party 4 did not exercise his right to the forest of this case, and the non-party 4's right to inheritance as the lawsuit of this case constitutes a violation of the principle of good faith or an abuse of rights. Thus, the non-party 4's right to inheritance as the lawsuit of this case constitutes a violation of the principle of good faith or an abuse of rights. Thus, as long as the acquisition by inheritance is the ownership of the forest of this case for a long time, it cannot be viewed that the non-party 4 did not exercise his right for the right of this case.

The defendant asserts that the lawsuit of this case is a lawsuit seeking the cancellation of the ownership transfer registration in the name of the defendant, which was based on the registration of ownership transfer due to the second order of the non-party 2, who is the title successor, and the lawsuit of this case was filed ten years after the date of commencement of inheritance, and ten years have passed since the registration of ownership transfer was completed in the name of the non-party 2, and that the limitation period of the right to claim inheritance recovery has expired since the lawsuit of this case was filed after September 12, 1970. Thus, the claim of this case is not seeking the cancellation of the above ownership transfer registration in the name of the defendant who acquired the forest of this case from the non-party 2 on the ground that the non-party 2 is the title successor, but it is obvious that the registration and the above ownership transfer registration in the name of the non-party 3 corporation and the defendant's name were forged without any authority and completed the ownership transfer registration under the name of the defendant. Thus, the lawsuit of this case cannot be viewed as the lawsuit of this case.

3. Conclusion

Therefore, the defendant is obligated to perform the procedure for cancelling the registration of cancelling the ownership transfer of the claim in relation to the forest of this case against the former non-party 3 corporation. Thus, the plaintiff's claim in this case seeking the non-party 2 and the non-party 3 corporation in successive subrogation as one co-inheritors of the forest of this case shall be accepted as valid. Accordingly, the original judgment is just, and the defendant's appeal is without merit, and it is dismissed, and the total costs of the lawsuit shall be borne by the defendant who has lost.

Judges Lee Young-young (Presiding Judge)