[1] Whether the executor of a will is a party in a lawsuit related to the testamentary gift subject matter (affirmative)

[2] The case holding that where an inheritor asserts that he/she would satisfy the current shares of the heir transferred by the registration of inheritance containing a nominal inheritor and waives his/her right to recover inheritance against a nominal inheritor, it shall be deemed that he/she should be deemed to waive his/her ownership of the portion registered in the name of a nominal inheritor among the rights of the inheritor acquired by the approval of testamentary gift, not the renunciation of testamentary gift, but

[3] The meaning of "a person who receives a benefit by will" under Article 1072 (1) 3 of the Civil Code, and whether the executor of a will constitutes such a person (negative)

[1] Since the executor of a will designated or appointed for executing a will has the right and duty to manage the property which is the object of the testamentary gift, and to perform any act necessary for carrying out a will, it is reasonable to deem that the executor of a will has standing to sue in a lawsuit claiming cancellation of the testamentary gift registration, etc., which is an object of testamentary gift, or a lawsuit claiming ownership transfer registration of the testamentary gift for carrying out a will.

[2] The case holding that in case where the inheritor asserts that he/she would satisfy the current shares of the heir transferred by the registration of inheritance containing the nominal inheritor and waive his/her right to claim the recovery of inheritance against the nominal inheritor, barring any special circumstance, the heir would not waive the testamentary gift, but rather refuse to claim the ownership of the portion registered in the name of the nominal inheritor among the rights of the inheritor acquired by approval of testamentary gift and thereby, barring any special circumstance

[3] Two or more witnesses must participate in a notarial will. A person who is entitled to benefit by a will under Article 1072 (1) 3 of the Civil Code as one of the disqualified witnesses who are not entitled to participate in the will refers to a person who is to be the inheritor of the testator or a donee who will be entitled to testamentary gift, so the executor shall not be deemed to be a disqualified witness.

[1] Articles 1101 and 1103 of the Civil Act / [2] Articles 105 and 1074 of the Civil Act / [3] Articles 1068 and 1072(1)3 of the Civil Act

Nonparty 1’s executor Kim Jong-hwan

Defendant 1 and three others (Attorney Park Sang-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na8405 delivered on November 18, 1997

The part of the judgment of the court below against Defendant 1 regarding real estate listed in the annexed table Nos. 1 through 3 and 5 through 19 is reversed, and that part of the case is remanded to the Seoul High Court. All of the appeals by Defendant 2, 3, and 4 and the remaining appeals by Defendant 1 are dismissed. The costs of appeal between the Plaintiff, Defendant 2, 3, and 4 are assessed against the said Defendants.

The defendants' attorney's grounds of appeal are examined.

1. On the first ground for appeal (as to the Defendant, common)

Since an executor who has been designated or appointed for the purpose of executing a will has the right and duty to manage the property which is the object of testamentary gift and to perform other acts necessary for executing a will (Article 1101 of the Civil Act). In a lawsuit claiming the cancellation of the inheritance registration, etc. which is completed on the testamentary gift that is impeding the execution of a will, or a lawsuit claiming the ownership transfer registration of the testamentary gift that is instituted on the testamentary gift for executing a will, it is reasonable to

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the status of executor.

2. On the second and third grounds (applicable only to Defendant 1).

A. According to the reasoning of the judgment below, the court below reasoned that in case of a testamentary gift, the person to receive the testamentary gift may waive the testamentary gift at any time after the death of the testator, and that the testamentary gift shall take effect retroactively to the inheritor unless the testator otherwise expresses his intention. In this case, the subject matter of testamentary gift shall vest in the heir, unless otherwise indicated in the testamentary gift. In this case, the defendant 2, 3, and 4 shall satisfy the present ownership shares transferred by the inheritance registration which was included in the heir to the defendant 1, and on any other reason, the other Defendants or the non-party 4 did not seek cancellation of the testamentary gift due to the will of the deceased (see, e.g., Supreme Court Decisions 20/100 on June 9, 1997 and the Defendants’ agents on June 17, 201). As such, the court below determined that the share of the above Defendants received the testamentary gift at least 4/10 of the testamentary gift to the deceased's heir and the non-party 14/14 of the testamentary gift.

B. In light of the records, the recognition and determination of real estate 4 by the court below is just, and there is no error of law as to the theory of lawsuit.

C. However, in light of the above legal brief of the Defendants, there is no indication that Defendant 2, 3, and 4 renounced testamentary gift, and only asserts that the above Defendants satisfied the current ownership shares transferred by the inheritance registration that was made by the above Defendants to Defendant 1, a named inheritor, and waiver of the right to claim for recovery of inheritance against Defendant 1. Accordingly, the above Defendants asserted the validity of the inheritance registration made by Defendant 1, his mother, and there is no other special circumstance to deem that the above Defendants renounced 86% of their testamentary gift ratio and had the intent to inherit the same to Nonparty 1, a double-borns, by giving up 86% of their testamentary gift ratio, the lower court should be deemed to have determined to the effect that the lower court should rather recognize the testamentary gift of the said Defendants, and that it would not claim ownership as to the portion registered in Defendant 1’s name among their rights acquired by the said approval (the Plaintiff did not assert the renunciation of testamentary gift).

Nevertheless, the court below's determination that the above Defendants renounced testamentary gift and accepted the Plaintiff's claim for cancellation registration even in the portion of non-party 1's portion arising from the renunciation of testamentary gift against Defendant 1 cannot be said to have erred by misapprehending the legal principles on the renunciation of testamentary gift, and it is obvious that this affected the judgment.

The appellant's assertion pointing this out is with merit.

3. On the fifth ground for appeal (applicable to all the defendants);

In light of the records, the court below rejected the defendants' assertion that the non-party deceased's will is void by recognizing that the non-party deceased's awareness was clear at the time of preparing the No. 772 of the No. 1991, and that the non-party deceased only made the same will as the No. 771 of the No. 1991, and the non-party deceased's assertion that the No. 772 of the No. 1991 of the No. 1991 shall take precedence over the No. 772 of the No. 1

In addition, two or more witnesses should participate in a will by notarial document (Article 1068 of the Civil Act), and a person who receives a benefit by a will under Article 1072 (1) 3 of the Civil Act as one of the disqualified witnesses who are not entitled to participate in a will refers to a person who will be an heir of the testator or a donee who will be entitled to a testament, so the executor shall not be deemed a disqualified witness.

The judgment of the court below to the same purport is just, and there is no violation of law as the theory of lawsuit.

4. On the sixth ground for appeal (applicable only to Defendant 2, 3, and 4)

The court below rejected the defendants' assertion that even if a testamentary gift was the object of a testamentary gift, it is possible to divide the real estate among the defendants who are the testamentary donee, so the registration of co-ownership transfer under the above defendants' names, which was completed through the consultation division, is valid. In case there are several testamentary donees, there is no system like the consultation division of inherited property in the case of several testamentary donees, and it is only possible to divide the co-owned real estate according to the method and procedure if the co-owned real estate was registered as a result of testamentary gift. In this case, there is no evidence to deem that there was an agreement among the defendants 2, 3, 4, and 1 on co-owned property division. In light of related Acts and subordinate statutes and the records, the above judgment of the court below is just and there is no error in the misapprehension of legal principles

5. On the seventh ground (applicable only to Defendant 1).

Examining the relevant evidence compared with the records, the court below recognized the facts of the judgment, and determined that the marriage report as of May 13, 1991 between the non-party deceased and the defendant 1 was null and void on the ground that the defendant's name return was made at will on the day before the death of the non-party deceased, so at the time of the marriage report, it cannot be viewed that the non-party deceased had the intention to marry with the defendant 1 at the time of the marriage report, and there is no error of law such

The grounds of appeal pointing this out are without merit.

6. Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant 1 (which is related to the waiver of testamentary gift and is without relation to the dismissal of appeal) and the part of the judgment below against Defendant 1 regarding each of the real estate listed in Nos. 1 through 3 and 5 through 19 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All of the appeals by Defendants 2, 3 and 4 and the remaining appeals by Defendant 1 are dismissed, and the costs of appeal are assessed against the losing party (excluding Defendant 1). It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)