Whether the inheritance right acquired by a lower-ranking heir than the lower-ranking person is included in the right of a third party under the proviso of Article 860 of the Civil Act.

The right of inheritance acquired by a lower-ranking heir may not be included in the right acquired by a third party under the proviso of Article 860 of the Civil Code.

Article 860 of the Civil Act, Article 1014 of the Civil Act

Plaintiff 1 and one other, Attorney Kim Sang-sung, Counsel for the plaintiff-appellant

[Defendant-Appellee] Defendant 1 and 3 others

Seoul High Court Decision 72Na416 delivered on July 27, 1972

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

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

Article 860 of the Civil Act provides that the retroactive effect of affiliation is limited to a third party's right. However, Article 1014 of the Civil Act provides that in cases where a person who becomes a co-inheritors after the commencement of inheritance or by the confirmation of a judgment, claims a division of inherited property, the other co-inheritors have the right to claim a payment of the equivalent value to the inherited property if the other co-inheritors divided or disposed of in advance, and limits the third party who has the right to prevent the retroactive effect of affiliation. Under this Civil Act, it is difficult to treat the lower-ranking heir (the inheritee, the sibling, etc. of the inheritee) of the person to whom the recognition is given in the same case as Article 1014 of the Civil Act.

The reason is that, even though it is clear that the lower-ranking heir should not be able to apply Article 1014, if he treats them as a third party under the proviso of Article 860, it would result in an unreasonable result that the lower-ranking heir who is left behind in the order of inheritance would be later protected than the lower-ranking co-inheritors.

Therefore, in order to do so without such unreasonable cause, the inheritance right acquired by the heir higher than the deceased (the decedent's punishment and sponsor) shall not be included and interpreted in the third party's right under the proviso of Article 860 of the Civil Act.

In this case, the court below did not err in the misapprehension of legal principles on the original judgment based on the premise that the right to claim compensation for damages against the defendant of the deceased was inherited by the non-party 1 and the non-party 2 who is subject to the original judgment after the commencement of the inheritance by the non-party 1 and the non-party 2. It cannot be said that there is no misapprehension of legal principles on the original judgment, and there is no difference in the first issue in the calculation of the amount of damages in a separate judgment according to the second argument of the non-party 1 and there is no error in the misapprehension of legal principles on the original judgment.

Therefore, it is so decided as per Disposition by a power plant.

Justices Ahn Byung-soo (Presiding Justice)