[1] Where a person claims cancellation, etc. of the registration of real estate, which is an inherited property, on the premise that he/she is a true inheritor, whether a lawsuit for recovery of inheritance regardless of the cause of the claim, insofar as it is based on inheritance (affirmative), and whether the provision of Article 999(2) of the Civil Act concerning the limitation period of the right to claim recovery of inheritance applies to

[2] Where one of the co-inheritors has completed the registration of ownership transfer under the Act on Special Measures for the Registration of Ownership Transfer, etc. in lieu of the registration of inheritance, whether another co-inheritors's lawsuit claiming the cancellation of the registration constitutes a lawsuit claiming the recovery of inheritance (affirmative)

[3] Whether the court's compliance with the exclusion period in a lawsuit claiming inheritance recovery constitutes a matter of ex officio investigation (affirmative), and the court's measure against the subsequent lawsuit (=Dismissal)

[1] Article 99 of the Civil Act / [2] Article 999(1) of the Civil Act, Article 7 of the former Act on Special Measures for the Transfer, etc. of Ownership of Real Estate (Act No. 4502 of Nov. 30, 1992) / [3] Article 99(2) of the Civil Act, Article 134 of the Civil Procedure Act

[1] [2] Supreme Court Decision 83Da600, 83Meu2056 decided Feb. 14, 1984 (Gong1984, 440) / [1/3] Supreme Court Decision 92Da3083 decided Feb. 26, 1993 (Gong1993Sang, 1080) / [1] Supreme Court en banc Decision 79Da854 decided Jan. 27, 1981 (Gong1981, 13638), Supreme Court Decision 90Da5740 decided Dec. 24, 1991 (Gong192, 635) (Gong192, 635). Supreme Court Decision 2009Da42321 decided Oct. 15, 2009 (Gong2009Ha, 13843)

Plaintiff

Defendant (Law Firm Han, Attorneys Kim Shin-chul et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2008Na23900 decided May 13, 2009

The part of the judgment of the court below concerning the conjunctive claim shall be reversed, and the judgment of the court of first instance shall be revoked, and the lawsuit concerning the corresponding part shall be dismissed. The remaining appeals shall be dismissed. All costs of the lawsuit

1. As to the conjunctive claim

Judgment ex officio is made.

In a case where a person claims the cancellation, etc. of registration of real estate, which is inherited property, from a reference heir or a reference heir who has acquired a right to inherited property or entered into a new interest from the reference heir, on the premise that he/she is a true inheritor, such claim constitutes a lawsuit for recovery of inheritance under Article 999 of the Civil Act, regardless of the cause of the claim (see Supreme Court en banc Decision 83Da600, 83Meu2056, Feb. 14, 1984; Supreme Court Decision 90Da5740, Dec. 24, 1991; etc.). Article 999(2) of the Civil Act concerning the period for exclusion of the right to claim recovery of inheritance applies to this case (see Supreme Court en banc Decision 79Da854, Jan. 27, 1981).

In addition, a named inheritor who becomes the other party to a claim for recovery of inheritance refers to a person who possesses all or part of the inherited property under the name of a person or heir who has no legitimate right of inheritance, by referring to the person who has an appearance to trust that he/she is a property inheritor. If a registration of transfer of ownership has been made in the name of one of co-inheritors with respect to the real estate that is an inherited property on the ground of inheritance, if such registration has been made on the ground of inheritance, the registered titleholder shall be deemed a person who

Therefore, where one of the co-inheritors has completed the registration of ownership transfer in its name pursuant to the former Act on Special Measures for the Registration of Ownership Transfer, etc. (Act No. 4502), the lawsuit claiming the cancellation of the registration by another co-inheritors on the ground that the registration of ownership transfer becomes null and void constitutes a lawsuit claiming inheritance recovery (see Supreme Court Decisions 83Da600, 83Meu2056, Feb. 14, 1984; 93Da3318, Apr. 13, 1993). Furthermore, in a lawsuit claiming inheritance recovery, if it is found to have been instituted after an ex officio examination as to whether the period of exclusion is complied with, it shall be dismissed as an unlawful lawsuit (see Supreme Court Decision 92Da3083, Feb. 26, 1993).

The plaintiff's conjunctive claim of this case was jointly inherited the real estate from the deceased non-party 4 (the deceased on January 30, 1981), but the plaintiff, the defendant, the defendant, and the non-party 1, 2, and 3 et al. without a property division consultation, sought cancellation of the above registration of transfer by asserting that the registration of ownership transfer was null and void on the ground that the registration of ownership transfer was made under the above special measures on the whole real estate under the defendant's sole name without a property division agreement. Accordingly, the plaintiff's conjunctive claim of this case constitutes a lawsuit for recovery of inheritance since the plaintiff alleged that the ownership of this case was reverted to the plaintiff on the ground of inheritance and sought cancellation of the registration of ownership transfer against the defendant, who made the registration of ownership transfer under the above special measures on the ground that the ownership transfer was made under the above special measures on January 30, 1981. Thus, the court below's dismissal of the plaintiff's first claim and the judgment below's dismissal of this case's claim should be made under the judgment of this case.

2. As to the main claim

The plaintiff also filed an appeal against the main claim, but it did not state the grounds of appeal in the petition of appeal and the appellate brief.

3. Conclusion

Therefore, the part of the judgment of the court below as to the conjunctive claim is reversed, and it is decided to see it pursuant to Article 437 of the Civil Procedure Act. The judgment of the court of first instance, which dismissed the plaintiff's claim for this part of this case, is obvious that it was erroneous for the above reasons. Thus, the judgment of the court of first instance is revoked, and the corresponding part of the lawsuit is dismissed, and the remainder of the appeal is dismissed,

Justices Lee Hong-hoon (Presiding Justice)