[1] In a case where a special beneficiary exists among co-inheritors, whether a divisible claim such as deposit claim belongs to the subject of division of inherited property (affirmative)

[2] In a case where there is a person among co-inheritors who received a donation or testamentary gift, whether the negligence from the subject matter of donation prior to the commencement of inheritance should be included in the special profit (negative with qualification)

[1] Although it is a principle that a claim like a deposit claim shall be divided into co-inheritors at the time of commencing the inheritance at the same time. However, if there is a special beneficiary among co-inheritors, if there is an excessive beneficiary, the excess special beneficiary shall be divided into the proportion of statutory inheritance even if he does not return excess profit. In addition, if a claim is divided into inherited property, the special beneficiary shall be divided into one’s share of inheritance and the contributor shall not be evaluated as contributory portion, thereby causing unfair results among co-inheritors. Therefore, in cases where a reorganization of statutory inheritance is to be conducted due to special profit or contributory portion, it is reasonable to include a claim by family in the inherited property subject to division in order to ensure equity among co-inheritors.

[2] In cases where there is a person among co-inheritors who received a gift or a testamentary gift, ownership of the subject matter of the gift is the heir who received the gift, and thus, there is a right to receive the fruits from the use of the subject matter, and it can be presumed that there is an intention to vest the fruits from the donation to the heir when the subject matter is donated to the heir before the commencement of the inheritance, and such intention should be respected. Also, if the subject matter is already consumed and is included in the special profit even if there is any negligence that may not exist any special beneficiaries, it may affect the donee’s unexpected burden, it is reasonable to exclude the negligence from the subject matter of the gift after the commencement of the inheritance from the special profit for equity among co-inheritors, barring any special circumstance that could undermine equity among the inheritors if not including such negligence, it is reasonable to exclude the negligence that occurred before the commencement of the inheritance from the special profit.

[1] Article 1013 of the Civil Act / [2] Article 1008 of the Civil Act

Claimant (Attorney Seo-dae et al., Counsel for plaintiff-appellant)

Nonparty 1 and five others (Law Firm Pacific, Attorneys Kim Young-young, Counsel for the plaintiff-appellant)

1. Each real estate listed in the separate sheet No. 1, 3/17 shares in the name of the deceased Nonparty 1 among the real estate listed in the separate sheet No. 2, each claim listed in the separate sheet No. 1 and 2, 3/17 shares in the portion of inheritance of the deceased Nonparty 1, shares listed in the separate sheet No. 3, and membership rights listed in the separate sheet shall be divided into the claimant's own ownership.

2. The other party shall:

A. The registration procedure for ownership transfer due to the division of the fixed date inherited property in the judgment of this case shall be implemented with respect to each one-seven share of each of the real estate listed in the attached list No. 1

B. Each 1/7 share of the bonds listed in the separate sheet No. 1 shall be transferred, and the above assignment shall be notified to Samsung Life Insurance Co., Ltd.

C. Each transfer of 1/7 shares among the bonds listed in the separate sheet No. 2 and 3/119 shares among the bonds listed in the bond list No. 3 of the separate sheet No. 2, and notify each of the above assignment to the Han Bank Co., Ltd.

3. The trial costs shall be borne by each person.

The text of paragraph (1) is as follows.

1. The inheritor and the statutory share in inheritance;

Comprehensively taking account of the overall purport of the entry and examination of evidence No. 1, the deceased non-party 1 (the deceased non-party 2) completed a marriage report with the deceased non-party 2 on February 27, 1945 and resulted in the claimant and the other party. The deceased non-party 2 died on December 22, 2003, and the deceased non-party 1 died on June 12, 2004 can be acknowledged as the fact that the deceased non-party 1 died on June 12, 2004. According to the above facts, the claimant and the other party are co-inheritors of the deceased non-party 1 and have the legal share of inheritance in

2. Scope and value of the inherited property;

A. Facts of recognition

Gap evidence 2, 3, 4, 5-1 to 5, 6-2, 1, 7-1, 2, 3, 14-1, 2, 6, 7, 8, 9, 12, 14, 19, 18-1, 22 of Eul evidence 23-1, 23-2, 10, 14-10, 15, and 20 of evidence 14-2, 20, and 14-14-2, 10, 14-10, 15, and 20 against this, the following facts may be acknowledged in full view of the whole purport of the examination. Any entry of evidence Nos. 10-2, 20-2, 14-10, 15, and 20-20 of evidence No.

(1) At the time of death, the deceased Nonparty 2 owned the real estate listed in No. 2 of the attached Table No. 2 and the bonds listed in No. 3 of the attached Table No. 3, and the deceased Nonparty 1 had each real estate listed in the attached Table No. 1, No. 2, each bond listed in the attached Table No. 1, No. 2, the shares listed in the attached Table No.

(2) On June 23, 2004, after the death of the deceased non-party 1, the deceased non-party 1 among the real estate listed in the attached list No. 2 of the real estate list No. 2 of the real estate list No. 2, the ownership transfer registration was made on December 22, 2003 with respect to 3/17 shares to the deceased non-party 1, and 2/17 shares to the claimant and the other party, and on January 12, 2005, the ownership transfer registration was made on June 12, 2004 to the claimant and the other party as to 1/7 shares among the real estate listed in the attached list No. 1 of the real estate list No. 1 of the real estate.

(3) At the time of commencement of inheritance due to the death of the deceased non-party 1, the value of each real estate listed in the separate sheet No. 1 of the attached Table No. 815,744,090 won [the value of each real estate listed in the separate sheet No. 1 of the attached Table No. 815,744,090 won [the value of the land 708,040,000 won x the officially assessed land price as of January 1, 2004 x 22] £« the value of the building 107,704,090 won (A14-10,15,20) x the value of the building 14-17 shares of the real estate listed in the separate list No. 2 of the real estate list No. 84,180,648 (b), A,14-10,15,200 won per share) x the value of shares listed in the separate list No. 9,1117,29000,40

(b) Scope of inherited property subject to division;

(1) According to the above facts, each real estate listed in the attached list No. 1, each bond listed in the attached list No. 1, 2, shares listed in the attached list, membership rights listed in the attached list, and real estate listed in the attached list No. 2, and the bonds listed in the attached list No. 3 of the attached list, among the real estate listed in the attached list No. 3, 3/17 shares of the deceased non-party 1 as the deceased non-party 1's inherited property (hereinafter referred to as the "property

(2) As to this, the other party 1 asserts that among the claims listed in the separate sheet Nos. 1 and 2, among the claims listed in the separate sheet No. 3, the deceased non-party 1’s statutory inheritance portion 3/17 shares in the separate sheet No. 3 of the claim list, they are separate bonds and do not

Therefore, in principle, it is reasonable to divide provisional claims such as deposit claims into inherited property at the time of commencement of inheritance to co-inheritors at the same time. However, if there is a special beneficiary among inheritors, if there is an excessive beneficiary, the special beneficiary would be divided into the proportion of inheritance even without returning excess profits, and if there is a separate claim with inherited property, the special beneficiary would be divided into one’s share of inheritance and the contributor would not be able to receive evaluation of contributory portion, and there would be unfair results among co-inheritors. Therefore, in case where the reorganization of statutory inheritance is required due to special profits or contributory portion, it is reasonable to include a separate claim in inherited property in the inherited property in order to ensure the equity among co-inheritors. In this case, it is reasonable to include a separate claim such as deposit claims in the inherited property, and there is a special beneficiary as seen below, and therefore, it is reasonable to include each claim in inherited property subject to division in order to ensure equity among co-inheritors.

Therefore, the above argument is not accepted.

(c) Total value of inherited property subject to division;

According to the above facts, the sum of the value of the inherited property of this case is KRW 12,828,370,201 [The value of each real property listed in attached Table 1] + KRW 84,180,648 (the value of 3/17 shares out of the real property listed in attached Table 2 of the real estate list) + KRW 9,117,296,50 (the value of shares listed in attached Table 2 of the real estate list) + KRW 241,00,000 (the value of shares listed in attached Table 2 of the stocks list) + KRW 2,570,148,963 (the value of membership in attached Table 2 of the stocks list).

3. Determination as to special benefits

(a) Special proceeds of the claimant;

(1) Comprehensively taking account of the overall purport of the examination as to Gap evidence 14-10, 15, 20, 18, 18, 11-9, 11-2 of Eul evidence, and 11-2 of Eul evidence, the claimant may recognize the fact that the sum of the value of the above shares as of June 30, 2004, around 25,158, 127, 696 won (i.e., the appraised value 1,402, 61 won per share x 17, 936 shares of the deceased non-party 3 corporation from March 27, 1989 to December 30, 1989. The claimant may not believe that it is against Eul evidence 10-2 of this case.

(2) On December 26, 2001, the other party 1 asserts that the claimant voluntarily terminated the fixed-term deposit of Nonparty 1, the deceased non-party 1's possession and management amount of KRW 9,321,798,705 on December 26, 2001, and paid KRW 7,477,10,000 among them to the above other party voluntarily, and thus, the above amount of KRW 9,321,798,705 is a special benefit for the claimant. However, the above amount paid to the above other party cannot be deemed to have been donated to the above other party and the claimant has made special benefit, and there is no evidence to prove that the claimant voluntarily consumed the remainder. Therefore, the above argument is without merit.

(3) In addition, the other party 1 asserts that, when there is a person who received a gift or testamentary gift from the inheritee, there would be unfair results among co-inheritors unless the total amount of profits from such gift or testamentary gift is taken into account. Thus, the claimant's assertion that the share dividends paid from the deceased non-party 1 to the deceased non-party 1 until the deceased non-party 1's commencement of inheritance should also be deemed as special profits by the claimant.

Therefore, in a case where there is a person among co-inheritors who received a gift or testamentary gift, ownership of the subject matter of gift is the heir who received the gift, it is reasonable to include the negligence that occurred prior to the commencement of inheritance in the special profit unless there are special circumstances that undermine equity among the co-inheritors. In this case, it is reasonable to include the stock dividends paid by the claimant in the special profit-making after the commencement of inheritance as well as in the special profit-making of the other co-inheritors because there is no possibility to include the stock dividends paid by the co-inheritors in the special profit-making after the commencement of inheritance, and there is no possibility to include the stock dividends in the special profit-making of the other co-inheritors as well as in the special profit-making of the above special profit-making of the co-inheritors, since there is no possibility to include the stock dividends paid by the claimant in the special profit-making after the commencement of inheritance (in this case, there is no possibility to include the stock dividends paid by the other co-inheritors in the dividend after the commencement of inheritance.

(b) Special profits of other party 1;

Comprehensively taking account of the overall purport of examination of evidence Nos. 10-1 through 5, evidence Nos. 12-1, 2, and 3 (Evidence No. 19-1, 2, and 3) as to each of the evidence Nos. 10-1 and 12-1, 2, and 3 (Evidence No. 19-1, 2, 3) the fact that other party 1 received a donation of KRW 11,977,100,000 in total on October 21, 1998, and KRW 4.5 billion from the deceased Nonparty 1, and December 26, 2001.

As to this, other party 1 argues that he did not receive the co-ownership share in his name from among the land and above-ground buildings located in Gangnam-gu Seoul Special Metropolitan City (number omitted) on October 10, 1998, which he received on December 26, 2001, the co-ownership share in his name was not donated to the non-party 3 corporation. Thus, it is insufficient to recognize the above assertion only by the descriptions of No. 16, No. 17-1, No. 17-2, No. 16, No. 17-2, No. 17-1, No. 16, and No. 17-2, and No. 18-1, No. 18-2, and No. 18-2, and No. 18-2, the deceased non-party 1 did not request the non-party 1's new title trust share in the name of the other party 1's land and the co-ownership share in the name of the other party 1's new building.

C. Special benefits of the other party 2, 3, 4, 5, and 6

Comprehensively taking account of the overall purport of the examination in Gap evidence 14-5, the fact that the other party 2, the other party 3, the other party 4, the other party 5, and the other party 6 received 5.5 billion won from the deceased non-party 1 on October 22, 1998 (the other party 1-1 of November 30, 2004 and the preparatory documents on December 14, 2004) and the claimant received 80 million won each on January 19, 2004 as gift and received 5.3 billion won each on donation.

4. Determination as to the claim for division of inherited property

(a) Calculation of specific shares of inheritance;

(1) Total value of deemed inherited property

76,463,597,897 won [the aggregate value of the inherited property of this case = KRW 12,828,370,201 + The aggregate value of the inherited property of this case + KRW 25,158,127,696 of the claimant's special profit + KRW 11,977,100,000 of the other party's special profit of KRW 11,977,100,000 + the other party's 2, 3, 4, 5, and 6

(2) Legal shares in inheritance

Claimant and Other 10,923,371,128 won (=76,463,597,897 won)

(3) Revised shares in inheritance

(1) Claimant: -14,234,756,568 won (=10,923,371,128 - Special proceeds of 25,158,127,696 won)

② Other party 1: -1,053,728,872 won (=10,923,371,128 - Special profit 11,977,100,000 won)

③ Other party 2, other party 3, other party 4, other party 5, and other party 6: KRW 5,623,371,128, respectively (= KRW 10,923,371,128 – Special benefit 5.3 billion)

(4) Distribution of the amount of excess special income

According to the above calculation, since the claimant and the other party 1 are more special beneficiaries, their specific shares of inheritance are zero, and if their excess special profits are divided in proportion to their statutory shares of inheritance among the remaining inheritors, the other party 2, the other party 3, the other party 4, the other party 5, and the other party 6 are to bear 3,057,697,088 won (=(14,234,756,568 won + 1,053,728,872 won) x 1/5).

(5) Specific shares in excess of the special benefit sharing

Other party 2, other party 3, other party 4, other party 5, and other party 6: KRW 2,565,674,040, respectively (i.e., KRW 5,623,371,128 – divided amount of KRW 3,057,697,088)

(6) Specific share ratio

Other parties 2, 3, 4, 5, 6: 2,565,674,040 won (specific shares of inheritance) / 12,828,370,200 won (specific shares of inheritance) = 1/5

B. Assignment of specific shares of inheritance by other parties 2, 3, 4, 5, and 6

The facts that other party 2, 3, 4, 5, and 6 donated 5.3 billion won to the deceased non-party 1 are as seen above. Meanwhile, considering the overall purport of the examination as to the evidence Nos. 2, 8-1 through 14, 9, 11, 14-1 through 21, 19-1 through 21, 19-1 through 20, and 20, the fact that the above other party's share of inheritance in relation to the inherited property of this case should be owned by the claimant on September 10, 2004, it is reasonable to deem that the above other party transferred 1/5 of each share of inheritance, reflecting the specific profits of the inherited property of this case.

(c) Method of partition;

Therefore, all of the inherited property of this case is divided into the claimant's sole ownership. The other party shall implement the procedure for ownership transfer registration based on the division of inherited property with respect to 1/7 shares of each of the real property listed in the separate sheet No. 1 in the separate sheet No. 1, and transfer 1/7 shares of each of the bonds listed in the separate sheet No. 1 in the separate sheet No. 1, notify Samsung Life Insurance Co., Ltd., and notify each of the above assignment to Samsung Life Insurance Co., Ltd., and transfer 3/119 shares of each of the bonds listed in the separate sheet No. 2 and 3/7 shares

5. Conclusion

Thus, the case shall be judged as ordered by the court on the claim for division of the inherited property of this case as the above recognition. [Attachment]: omitted such as the list of real estate and the list of bonds.

Judges Kim Jong-soo (Presiding Judge)