Seoul Guarantee Insurance Co., Ltd. (Dongdong Law Firm, Attorneys Lee Jae-ro, Counsel for defendant-appellant)

Defendant 1 and three others (Attorneys Han Hong-man et al., Counsel for the defendant-appellant)

April 30, 2014

Changwon District Court Decision 2012Da11405 decided August 21, 2013

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. The plaintiff's claims against the defendants are all dismissed.

3. The Plaintiff is responsible for total costs of litigation between the Plaintiff and the Defendants.

Purport of claim

The plaintiff is jointly and severally with the non-party 1 and 2.

1. As to Defendant 1’s KRW 5,007,893 and KRW 1,181,091 among them:

2. As to Defendant 2, Defendant 3, and Defendant 4: KRW 3,38,595, respectively, and KRW 787,394, among them

From August 23, 1999 to the day of full payment, 19% interest per annum shall be paid respectively.

Purport of appeal

The same shall apply to the order.

1. Basic facts

A. Plaintiff’s claim for reimbursement against the deceased Nonparty 3

1) On April 28, 1993, the deceased non-party 3 jointly and severally guaranteed the payment of indemnity liability to the plaintiff of non-party 1 and non-party 2 in relation to the small loan guarantee contract between the plaintiff (the pre-revision Guarantee Insurance Co., Ltd.) and the non-party 1 and the non-party 2 as follows.

In the case of Nonparty 1,1,00,000 won from April 28, 1993 to June 26, 1998, which is a joint and several surety insurance period for the insured insured, Nonparty 3 and Nonparty 1, who are the deceased Nonparty 3 and Nonparty 2, who are the deceased Nonparty 1,1,000 won from April 28, 1993 to June 26, 1998.

2) When Nonparty 1 and Nonparty 2 were in arrears with the principal and interest of the loan to the Education Insurance Co., Ltd., the Plaintiff subrogated KRW 21,653,352 on July 25, 1995 for the sum of KRW 10,826,676 each to the Education Insurance Co., Ltd.

B. Inheritance relationship following the death of the deceased non-party 3

The deceased non-party 3 died on November 24, 200, and the deceased non-party 1 (spouse), Defendant 2, Defendant 3, Defendant 4, and Non-party 4 (children), who are the first-class inheritor, have renounced the inheritance (Chowon District Court 2001No. 50), and the deceased non-party 5 (Muss) who is the second-class inheritor, was solely inherited the deceased non-party 3's property.

C. Death of the deceased non-party 5

The deceased non-party 5 died on February 10, 2004, and his children are deceased non-party 3, non-party 6, non-party 7, the deceased non-party 8 (Death on August 20, 195) and non-party 9.

(In the absence of dispute, Gap's evidence Nos. 1 through 13, Eul's evidence No. 1 and the purport of the whole pleadings)

2. Judgment on the main defense of this case

A. Summary of the main defense

1) On October 2, 1997, the Plaintiff filed the instant lawsuit against the deceased non-party 3 for the purpose of interrupting the extinctive prescription after obtaining a final and conclusive judgment in favor of the deceased non-party 3 as the Changwon District Court Decision 97Da20819. The Plaintiff’s provisional seizure of the claim for indemnity of this case’s real estate owned by the deceased non-party 3 as the preserved claim and the interruption of extinctive prescription is continued by the above provisional seizure. As such, the Plaintiff does not need to file the instant lawsuit for the purpose of interrupting extinctive prescription. Accordingly, the instant lawsuit for the interruption of extinctive prescription is unlawful as there is no benefit of lawsuit.

2) After the Plaintiff received a final and conclusive judgment in favor of the Changwon District Court 97Kadan20819, the Plaintiff filed a lawsuit against the Defendants for the interruption of extinctive prescription pursuant to the Busan District Court 2007Kadan148139, but the Defendants withdrawn the defense of renunciation of inheritance on or around December 2007, and the Plaintiff’s re-instigation of the lawsuit against the Defendants, which is the same litigation, cannot be permitted contrary to the principle of good faith, and thus, cannot be permitted.

(b) Markets:

1) As to whether there is a benefit of action

According to the purport of Gap evidence Nos. 15, 16 and Eul evidence Nos. 2 and the whole pleadings, the plaintiff filed a claim against the deceased non-party 3 for the reimbursement of this case on October 2, 1997, and was sentenced to a winning judgment under the Changwon District Court 97Kadan20819 on October 2, 1997, and the judgment became final around that time, and the plaintiff attached on August 21, 1995, Nos. 206 of Changwon-gu, Changwon-si Housing 206 owned by the deceased non-party 3 as the claim for the reimbursement of this case on August 21, 1995 ( Address omitted).

However, the instant lawsuit was filed against the Defendants, not the deceased Nonparty 3, and the Defendants were also identical to the fact that they renounced the deceased Nonparty 3’s inheritance, so long as the Defendants asserted that they did not inherit the claim for reimbursement of the instant case, considering the characteristics of the inheritance system, such as difficulty in confirming the inheritance obligor, there is a benefit of the instant lawsuit regardless of the expiration of the extinctive prescription period.

In addition, since the extinctive prescription of the claim based on the above judgment has already been completed more than 10 years since the date on which the plaintiff's lawsuit against the deceased non-party 3 became final and conclusive, the claim against the deceased non-party 3 has already been completed, and it does not seem that there is no benefit in the lawsuit of this case in light of the circumstances where it seems necessary for the plaintiff to receive a new name of debt.

2) As to whether it is against the principle of good faith and the principle of no-competence

According to the purport of Eul evidence Nos. 2 and the whole pleadings, the plaintiff filed a claim against the defendants for reimbursement of this case against Busan District Court 2007Kadan148139, but the plaintiff withdrawn the above lawsuit around December 2007.

However, there is no restriction in filing a lawsuit prior to the final judgment on the merits. Thus, the above recognized facts and evidence submitted by the Defendants alone are insufficient to recognize that the Plaintiff’s filing a lawsuit in this case against the Defendants, which is the same as the instant lawsuit, is not permissible contrary to the principle of good faith and the principle of no speech.

3. Judgment on the merits

A. The parties' assertion

1) The plaintiff's assertion

Since the Defendants inherited the deceased Nonparty 3’s inheritance shares among the deceased Nonparty 5’s property solely inherited by inheritance, the Defendants are obligated to pay to the Plaintiff the money equivalent to the Defendants’ inheritance shares out of the indemnity amount.

2) The defendants' assertion

If the Defendants, through the deceased non-party 5, have given up the deceased non-party 3’s property inheritance, again inherited the deceased non-party 3’s inheritance on behalf of the deceased non-party 3 through the deceased non-party 5, this would be attributable to the purpose of renunciation of inheritance and establishment of succession by representation, and it would be contrary to the principle of good faith and trust and good faith.

(b) Markets:

The fact that the deceased non-party 3 was the deceased non-party 5's son, the deceased non-party 3's inheritor, and the deceased non-party 5, the deceased non-party 3, the deceased non-party 3, the deceased non-party 3, the deceased non-party 3, the deceased by the deceased non-party 5, and the defendants inherited the deceased non-party 3's share of inheritance on behalf of the deceased non-party 3 is as above.

In addition, according to the purport of Eul evidence No. 1 and the whole arguments, the deceased non-party 5's inherited property has 206 Masan-si ○○○○-si 206, and the inheritance obligation has a total amount of 153,192,098 won against the plaintiff (including the indemnity obligation of this case). The above inherited property and the inheritance obligation are not the deceased non-party 5's own property or obligation, but all are inherited from the deceased non-party 3. The deceased non-party 5's proprietary property or obligation of the deceased non-party 5 does not exist at all.

However, in full view of the following circumstances acknowledged by the statement in Eul evidence No. 1 and the purport of the entire pleadings, in the instant case, if the deceased non-party 5’s proprietary property or debt exists, the effect of the Defendants’ abandonment of inheritance from the deceased non-party 3 reaches the deceased non-party 3’s substitute inheritance following the deceased non-party 5’s death, and as a result, the Defendants were to waive the deceased non-party 5’s substitute inheritance of the claim of this case against the deceased non-party 5. Thus, the Plaintiff’s claim of this case based on the premise that the Defendants inherited the claim of this case by substitute against the deceased non-party 5 is without merit without any need to further examine.

1) The purport of the system of renunciation of inheritance is to allow an inheritor to choose whether to succeed to the inheritance in order to protect the inheritor from the inheritance obligation, so it is reasonable to deem that the inheritor has inherent in his/her intent not to ultimately succeed to the inherited property when the inheritor renounces his/her inheritance, and it is generally anticipated that he/she completely exceeded the risks of the inheritance obligation through the renunciation of inheritance.

2) The deceased non-party 5 did not have any property or obligation, other than the property or obligation inherited from the deceased non-party 3, and thus, if the Defendants inherited the deceased non-party 5’s property by representation, it would result in contradictions that the deceased non-party 3’s obligation already renounced would be inherited through the deceased non-party 5.

3) The inheritance system by representation is not recognized for the inheritance of the inheritee’s obligation to the person who acts as a substitute, but is recognized for the purpose of ensuring fairness by protecting the expectation of inheritance by substitute. As in this case, in a case where the deceased Nonparty 5 did not have any property other than the inherited property from the deceased Nonparty 3, it is difficult to view that there is no expectation of inheritance of the deceased Nonparty 5’s property, and therefore, it is unnecessary to recognize inheritance by representation.

4) If the Defendants, the deceased non-party 3’s heir, give up the inheritance, the deceased non-party 5, the deceased non-party 3, the deceased non-party 5, the deceased non-party 3’s sole heir inheritance, and thereafter, the deceased non-party 3, upon the death of the deceased non-party 5, will succeed to part of the deceased non-party 3’s debt again. However, this can only be derived by comprehensively interpreting the provisions of the Civil Act on the order of inheritance and the effect of the renunciation of inheritance. It is difficult to expect that the Defendants, who did not have expertise, should grasp the inheritance relationship after the deceased non-party 3’s renunciation of inheritance.

4. Conclusion

The plaintiff's claim against the defendants is dismissed due to the lack of reason, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim against the defendants is dismissed. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)