[1] Purport of the provision of Article 1008 of the Civil Code, and where a substitute successor received a donation from the inheritee before the cause of the substitute, whether the above profit of the substitute inheritor constitutes a special benefit (negative)

[2] In a case where Party A’s children died before the inheritee A died, and Party B donated forest land to Party B’s children before Party B’s death, the case holding that the lower court erred by misapprehending the legal doctrine that the forest land constitutes a special benefit of Byung, and thus, constitutes a basic property for calculating legal reserve of inheritance

[1] The purpose of Article 1008 of the Civil Code is to treat the property donated by, or testamentary gift from, the inheritee among co-inheritors in order to ensure fairness among, the co-inheritors in cases where there is a special beneficiary who received a donation of property from, or testamentary gift, and to take this into account in calculating the specific share of inheritance in order to ensure fairness among the co-inheritors. Thus, if the inheritor received a donation from the inheritee before the occurrence of the cause of inheritance, this does not constitute an inheritor’s status, and thus, it cannot be viewed as an advance payment of the share of inheritance. In addition, if it is considered as an advance payment of the share of inheritance, it does not constitute a special benefit in cases where the inheritee first died of the inheritee before the death of the inheritee and inheritance took place, which would result in unreasonable result that would constitute a special benefit

Therefore, the above profits of the inheritor do not constitute special profits. This is more so far from the perspective that it is desirable to respect the will of the inheritee, as far as possible, the extent of recognition is limited to the disposal of one’s own property based on the will of the inheritee under the name of guaranteeing a certain portion of the heir’s share of inheritance.

[2] In a case where, before the decedent Gap died before the decedent Gap died, Eul et al. donated forest land to Byung, who was the child of Eul before the decedent Eul died, the case holding that Byung did not constitute the basic property for calculation of legal reserve because it cannot be viewed as the advance payment of inheritance, and it does not constitute the special profit, and thus, it constitutes the special profit of Byung, and thus, it constitutes the basic property for calculation of legal reserve. Thus, the court below erred in the misapprehension of legal principles.

[1] Article 108 of the Civil Act / [2] Articles 1008 and 1113 (1) of the Civil Act

[1] Supreme Court Decision 94Da16571 delivered on March 10, 1995 (Gong1995Sang, 1576)

Plaintiff 1 and six others

Defendant (Attorney Kim Young-chul et al., Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2011Na5552 decided February 17, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the fact that ① the non-party 1 (hereinafter referred to as the "the deceased") died on August 12, 2009 and inheritance by representation was made as listed in the annexed inheritance relations list of the court below. ② Meanwhile, the non-party 2, 3, and 4 died first among the deceased's children before the death of the deceased; the deceased was the head of the non-party 2 on June 12, 1991, the above non-party 2, and one of the married inheritors in the above inheritance relations list of the above inheritance relations (hereinafter referred to as the "the forest of this case"), and determined that the forest of this case is included in the basic property for calculating legal reserve as the defendant's special profit.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The purport of Article 1008 of the Civil Act is to consider the gift of property or testamentary gift among co-inheritors in order to ensure fairness among co-inheritors in cases where there is a special beneficiary who received a gift from the inheritee among co-inheritors (see, e.g., Supreme Court Decision 94Da16571, Mar. 10, 195). If a substitute inheritor received a gift from the inheritee before the occurrence of a substitute cause, this cannot be considered as the advance payment of the inherited property, as it is not received from the inheritor, since it does not constitute the advance payment of the inherited property. If inheritance takes place prior to the death of the inheritee, it does not constitute a special benefit if it was done prior to the death of the inheritee, and it is reasonable to view that the above profit of the inheritor does not constitute a special benefit. This is more desirable to ensure that the heir’s legal reserve of inheritance does not constitute the special benefit of the inheritee from the perspective of the heir’s consent to respect the heir’s property as much as possible within the limited scope of his/her own free share.

B. Examining the above legal principles and the above facts revealed in the record, the Defendant’s donation of the forest of this case from the deceased before the death of Nonparty 2 cannot be deemed as the advance payment of inherited property, since it does not constitute a special benefit, and thus, it does not constitute a basic property for calculating legal reserve of inheritance.

C. Nevertheless, the lower court deemed that the instant forest falls under the Defendant’s special benefit and included the underlying property for calculating the legal reserve of inheritance, which is erroneous in the misapprehension of legal doctrine on the special benefit of the inheritor by the substitute heir.

3. Therefore, without any need to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)