2013 Gohap9233 Cancellation of ownership transfer registration

1. A;

2. B

3. C.

April 15, 2014

May 13, 2014

1. The defendant against the plaintiffs

(a) Each transfer registration of ownership completed on February 5, 2013 by the Daegu District Court (Seoul District Court) No. 4182 with respect to each of the 7/9 shares in the respective real estate listed in the separate sheet Nos. 1 and 2;

B. The Daegu District Court shall implement the registration of transfer of ownership and the registration procedure for cancellation of each transfer of ownership completed on March 26, 2013 as the receipt No. 9820 with respect to each of the real estate listed in the separate sheet Nos. 3 through 6.

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

The same shall apply to the order.

1. Basic facts

A. E owned each real estate listed in the separate sheet (hereinafter “instant real estate”) and died on March 29, 2012 while residing in Japan.

B. The co-inheritors of E have both Plaintiff B, C, and Defendant, the wife of Plaintiff A and their children, and both of them have resided in Japan, but their nationality is Korea. After the death of Plaintiff C, Plaintiff A, and B reported the renunciation of inheritance to the ASEAN Family Court on August 8, 2012 and accepted the declaration of renunciation of inheritance.

C. Meanwhile, the Defendant completed the registration of ownership transfer due to inheritance under the Daegu District Court No. 4182, Feb. 5, 2013 with respect to each real estate listed in the separate sheet Nos. 1 and 2, and completed the registration of ownership transfer due to inheritance under the title No. 9820, Mar. 26, 2013 with respect to each real estate listed in the separate sheet No. 3 through 6.

D. On October 4, 2013, the Plaintiff A and C filed an application for revocation of the renunciation of inheritance with the ASEAN Family Court. [Grounds for recognition] The fact that there is no dispute, Gap 1 through 6, 8 through 11 (including branch numbers), Eul 1’s each statement and the purport of the whole pleadings and arguments.

2. The parties' assertion

A. The plaintiffs' assertion

Although the Defendant did not notify the Plaintiffs of the instant real estate in spite of joint inheritance with the Plaintiffs, the Defendant had the Plaintiffs report the renunciation of inheritance in Japan, and completed the registration of ownership transfer in the name of the Defendant on the ground that he is a sole inheritor. Since the Plaintiffs’ renunciation of inheritance is not effective, the registration of ownership transfer in the name of the Defendant on the Plaintiffs’ share of inheritance should

B. Defendant’s assertion

Since all of the plaintiffs were residing in Japan, they reported the renunciation of inheritance to the ASEAN Family Court in accordance with the Japanese law, and the above report was accepted, only the defendant is the deceased E's sole heir, and the registration in the name of the defendant is valid.

3. Determination

(a) Applicable law;

On the other hand, E died in Japan, and both the plaintiffs and the defendant's habitual residence are Japan, and according to the statement in the evidence No. 3, E's inherited property is recognized as the existence in Japan as well as the Republic of Korea. Thus, in this case, the governing law should be determined pursuant to the Private International Act as the case concerning "legal relations with foreign elements" as stipulated in paragraph (1) of the Private International Act.

Therefore, in accordance with Article 49(1) of the Private International Act, the Civil Code of the Republic of Korea is the law of nationality of the inheritee at the time of death. However, Article 17 of the Private International Act provides that the method of a juristic act shall be governed by the law of the place of the act, and also the method of the act concerning inheritance shall be valid.

B. Whether the waiver of succession by the plaintiffs is valid

The fact that the plaintiffs reported the renunciation of inheritance to the ASEAN Family Court in accordance with the Japanese law is recognized as a valid method in accordance with Article 17 of the Private International Act. However, even if the above declaration of renunciation of inheritance is valid in the manner of renunciation of inheritance, the actual requirements for the establishment related to the renunciation of inheritance are in accordance with Article 1019 of the Civil Code of the Republic of Korea. Therefore, the plaintiffs must file a report of renunciation of inheritance within three months from the date on which they became aware of the commencement of inheritance. Therefore, since the plaintiffs were aware of the commencement of inheritance around March 29, 2012 when the deceased Eul was deceased, the plaintiffs' report of renunciation of inheritance by the plaintiffs on August 8, 2012 and September 13, 2012, respectively, made more than three months after the commencement of inheritance.

(c) Inheritance shares and partial invalidity of each registration of transfer;

1) As to each real estate listed in the separate sheet, the Plaintiff A, as the co-inheritors of the network E, was succeeded to 3/9 shares, and the Plaintiff B and C, as their children, respectively.

2) Therefore, as long as the waiver of succession by the plaintiffs is null and void as above, regardless of the result of the plaintiffs Gap and C's application to revoke the renunciation of succession, the transfer registration of ownership on each of the above real estate in the defendant's name is deemed null and void as it goes beyond 2/9 of their own inheritance shares (the plaintiff's shares and 7/9 shares among the above real estate) and without any cause.

4. Conclusion

Thus, the defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration with respect to 7/9 shares (3/9 + 2/9 + 2/9) of each of the real estate listed in the separate sheet to the plaintiffs, so it is decided as per Disposition by admitting the name of the plaintiffs.

The presiding judge, judge and auditor;

Judges Lee Jong-soo

Judges Limited

A person shall be appointed.