Where the subject matter of a testamentary gift is the subject matter of a third party’s right at the time of death of a testator, whether the third party’s right exists even after the testamentary gift belongs to the donee (affirmative in

Article 1085 of the Civil Act provides, “Where the subject matter of a testamentary gift is the subject matter of a third person’s right at the time of the death of the testator, the testamentary donee shall not demand to extinguish the rights of the third person against (1) (where the subject matter of the testamentary gift is the subject matter of the testamentary gift, the testamentary donee shall not demand to extinguish the rights of the third person.” This is confirmed as a matter of principle in view of the fact that giving the subject matter of the testamentary gift to the testamentary donee according to the condition as at the time when the testamentary gift takes effect, unless the testator expresses another will. Therefore, where the subject matter of a testamentary gift is the subject matter of a third person’s right

Article 1085 of the Civil Act

Seoul Law Firm

Dad Social Welfare Foundation (Law Firm Support, Attorney Lee Dong-hoon, Counsel for defendant-appellant)

Seoul Southern District Court Decision 2017Na54041 decided November 23, 2017

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 1085 of the Civil Act provides, “Where the subject matter of testamentary gift or right is the subject matter of a third person’s right at the time of the death of the testator, the testamentary donee shall not demand to extinguish the third person’s right against the subject matter of testamentary gift.” This is the principle that the testamentary donee shall acquire the subject matter of testamentary gift in the condition as at the time of the becoming effective, taking into account the fact that granting the subject matter of testamentary gift to the testamentary donee according to the condition as at the time of the testamentary gift unless the testator expresses another will. Therefore, where the subject matter of testamentary gift is the subject matter of a third person’s right at the time of the death of the testator, the rights of

2. According to the reasoning of the judgment of the court of first instance, the court below accepted the judgment of the court of first instance, and acknowledged the fact that the non-party established the defendant on October 16, 197 and operated the defendant as chief executive officer. The defendant completed the building owned by the defendant on July 31, 1987 on the land of this case on which the non-party owned, and did not pay the non-party the usage fee of the land of this case. The non-party was dead on November 1, 1999 after the non-party bequeathed the land of this case to the family council of this case on June 13, 1994, and on April 11, 2001, the ownership transfer registration was completed for the land of this case on the land of this case on which the non-party was transferred to the family council of this case on April 11, 200, and rejected the defendant's right to use the land of this case without compensation until the non-party acquired the ownership of the land of this case, but the non-party's right to claim for free use.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below, the Defendant’s founder and operator of the instant land owned by the Nonparty was aware of the fact that he had been using the land for ten years until the Nonparty died. However, if the possession and use of the land of this case without compensation was based on a loan relation established between the Nonparty and the Nonparty who was the testator, as alleged by the Defendant, as alleged by the Defendant, the use owner of the instant land subject to testamentary gift pursuant to the aforementioned legal doctrine, and the Defendant’s right as a user of the instant land ought to be deemed as still existed after the acquisition of ownership of the instant land, barring any special circumstance. Therefore, the lower court should have deliberated whether the Nonparty and the Defendant had maintained the Defendant’s right of possession after the acquisition of ownership of the instant land at the time of the non-party’s death. However, the lower court rejected the Defendant’s assertion on the source of right of possession on the grounds that the Defendant had no right of use with respect to the non-party and the new owner. In so doing, it did not err by misapprehending the legal doctrine as to the interpretation of Article 1085 of the Civil Act, thereby affecting the conclusion.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)