[1] In a case where an heir who received a pre-living donation becomes a spouse and formed a family community along with the deceased's return for the first time as his/her spouse, and has contributed to each other, acquired and maintained the property which is the economic foundation of his/her family, and continued to raise and support the children, whether excluding the pre-living donation from the special benefits is contrary to the fairness in relation to co-inheritors, who are children (negative)

[2] The case holding that the court below erred in the misapprehension of legal principles as to special profits of the spouse, on the ground that Eul, who had no property other than the above real estate, donated the entire donated property to Eul to Eul, in a case where Eul et al. donated the entire donated property to Eul, since Eul et al., whose father et al, maintained her marital life by the time of Eul's death with his father et al and al's father's death

[1] Article 108 of the Civil Act provides, “In cases where there is a person who received a donation or testamentary gift from an inheritee among co-inheritors, if the gift or testamentary gift does not reach his/her own share, there exists a share of inheritance to the extent of the deficient portion.” This purport is to treat the gift property as the advance payment of the inheritance in order to ensure the fairness among co-inheritors in cases where there is a special beneficiary who received a donation of property or testamentary gift from an inheritee among co-inheritors, and to consider it in calculating the specific share of inheritance. Here, what constitutes special benefit should be determined by taking account of the property of the inheritee’s life, income, living standard, and family situation, and by taking account of equity among co-inheritors, it can be deemed that the donation in question would give part of his/her share of the inherited property to the person to be the inheritor, and thus, it is reasonable to view that the heir who received the donation in advance was returned for the deceased’s family community as his/her spouse and formed the family community, and made efforts to acquire and maintain the property of his/her spouse and children within the aggregate.

[2] The case holding that the court below erred in the misapprehension of legal principles on the property of the spouse, on the ground that, in case where Party A’s donation of Party B’s real estate to Party B by 43 years and 7 years prior to the death of Party B with Party B’s her father’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s son’s son’s her son’s son’s son’s her son’s son’s her son’s son’s her son’s son’s her son’s son’s son’s son’s her her son’s her.

[1] Article 1008 of the Civil Code / [2] Article 1008 of the Civil Code

[1] Supreme Court Decision 94Da16571 delivered on March 10, 1995 (Gong1995Sang, 1576) Supreme Court Decision 97Meu513, 520, 97Du12 delivered on December 8, 1998 (Gong199Sang, 123)

Plaintiff 1 and one other (Attorney Seo-sik, Counsel for the plaintiff-appellant)

Defendant (Law Firm Korea, Attorneys Kang Jong-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na12489 decided July 21, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 1008 of the Civil Act provides, “In cases where there is a person who received a gift or testamentary gift from an inheritee among co-inheritors, if the gift or testamentary gift of the inheritee does not reach his/her own share of inheritance, there exists a share of inheritance to the extent of the deficient portion.” The purport of this provision is to treat the gift property as the advance payment of the share of inheritance in order to ensure the fairness among co-inheritors in cases where there is a special beneficiary who received a gift or testamentary gift from the inheritee among co-inheritors, and to consider it when calculating the specific share of inheritance (see Supreme Court Decision 94Da16571, Mar. 10, 195).

In this context, whether a donation by transfer constitutes a special benefit shall be determined by taking into account the property before the inheritee’s birth, import, standard of living, home conditions, etc., and by taking account of the equity among co-inheritors among themselves, whether the donation by transfer may be deemed to have been partially given to the person to be the primary heir (see Supreme Court Decision 97Meu513, 520, 97S12, Dec. 8, 1998). In a case where the heir who received by transfer was a spouse of the inheritee who formed a family community, formed a family community, acquired and maintained property based on the deceased’s economic foundation, and continued raising and supporting the children, it is reasonable to deem that the donation by transfer includes compensation or evaluation of the above spouse’s contribution or effort, substantial common property liquidation, performance of duty to support the female spouse, etc., and thus, even if such donation within such limit, it cannot be excluded from the special benefit by the co-inheritors.

2. The lower court determined that all of the decedents who had no property other than the instant real property, which is donated property, donated to the Defendant cannot be deemed as having ordinarily supported the property, and should be deemed as having given the inherited property in advance.

However, we cannot accept the above decision of the court below for the following reasons.

According to the judgment of the court below and the evidence duly admitted by the court below, the defendant had been married between the deceased and the non-party who is a dependent, and maintained a marital life until the time of the deceased's death, and the donation of each real estate of this case to the defendant of the deceased who claimed by the plaintiffs was made seven years prior to the deceased's death. In light of the above legal principles, it is sufficient to view that the defendant's donation of each of the real estate of this case to the defendant of this case to the defendant was included in the purport of the defendant's donation of the deceased's birth together with his endeavor and contribution to the formation and maintenance of the property by together with his life as the deceased's wife, compensation or assessment for such contribution, liquidation, or fulfillment of duty to support, and it is not necessarily deemed that the payment for inheritance to the defendant for whom one of the co

Therefore, the lower court should have deliberated on all elements such as the content of marital life between the Defendant and the inheritee, the degree of contribution made by the Defendant to the formation and maintenance of the inheritee’s property, and the physical foundation necessary for the maintenance of the Defendant’s living, and determined whether all or part of the donated property was excluded from special profits by evaluating the degree or ratio included in the donation of this case. However, the lower court determined that the entire donated property was a special profit solely on the ground that the decedent who had no property other than each of the instant real property donated all of the donated property to the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on special

3. 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 Ahn Dai-hee (Presiding Justice)