A. Legislative intent of Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990); Article 5-2 subparag. 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13196, Dec. 31, 1990)

(b) Where the registration of creation of a neighboring mortgage established in a donated property is cancelled on the day immediately preceding the date of the registration of transfer of ownership due to donation, whether it is included in the "property on which a collateral mortgage has been created" under Article 9 (4) of the former Inheritance Tax Act and subparagraph 3 of Article 5-2 of the

A. The purport of Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990) and Article 5-2 subparag. 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13196, Dec. 31, 1990) concerning the appraisal of the value of inherited property and donated property is that, inasmuch as the maximum amount of secured debt of the right to collateral is determined within the scope of the actual value of the property in question, the maximum amount of secured debt of the right to collateral should be determined within the scope of the actual value of the property in question, and

B. If the registration of the establishment of a neighboring mortgage on a donated property remains, and the property is cancelled on the ground of the repayment of the secured debt, unless there are special circumstances, the maximum amount of the secured debt can be the minimum standard that reflects the actual value of the property at the time of the donation. Thus, it may not be included in the property for which the right to collateral security is established under Article 9(4) of the former Inheritance Tax Act and Article 5-2(3) of the Enforcement Decree of the same Act, unless there are special circumstances.

Article 9(4) of the former Inheritance Tax Act (amended by Act No. 4283, Dec. 31, 1990); Article 5-2 subparag. 3 of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196, Dec. 31, 1990)

(a) Supreme Court Decision 89Nu7481 delivered on March 27, 1990 (Gong1990, 1006). Supreme Court Decision 87Nu354 delivered on July 21, 1987 (Gong1987, 1420)

[Defendant-Appellee] Plaintiff 1 et al.

Head of Daegu Tax Office

Daegu High Court Decision 90Gu1091 delivered on May 29, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

The purport of Article 9(4) of the Inheritance Tax Act (amended by Act No. 4283 of Dec. 31, 1990) and Article 5-2 subparag. 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13196 of Dec. 31, 1990) provides that in the case of the property created by the right to collateral security, in the case of the property created by the right to collateral security, the larger amount between the maximum amount of the claim secured by the property and the value based on the current status at the time of the commencement of the inheritance shall be the value of the property at the time of the commencement of the inheritance, since the maximum amount of the claim secured by the right to collateral security shall be determined within the scope of the actual value of the property,

Therefore, in principle, it is necessary that the right to collateral security established on the pertinent property exists at the time of commencement of the inheritance or donation. However, as in this case, in case where the right to collateral security established on the pertinent property remains in existence at the time of the commencement of the inheritance or the right to collateral security established on the donated property is cancelled on the ground of repayment of the secured obligation, unless there are special circumstances, the maximum amount of the secured obligation can be the minimum standard to reflect the actual value of the property at the time of donation, barring any special circumstances. Thus, the above case should be included in the property where the right to collateral security established on the donated property is established (see Supreme Court Decision 89Nu7481 delivered on March 27, 190).

The judgment of the court below to the same purport is just and there is no error in the misapprehension of legal principles as to the appraisal of the value of donated property, or in the misapprehension of legal principles as to the determination of evidence, which affected the conclusion of the judgment.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)