[1] In a case where one of the co-inheritors received a donation from the inheritee, whether the donation was made for one year prior to the commencement of the inheritance, whether it is included in the basic property for calculating the total legal reserve (affirmative)

[2] In case where part of the donated property was already disposed of before the commencement of inheritance, whether it was excluded from basic property for calculating legal reserve (negative), and the standard for calculating the market price of the donated property in calculating legal reserve (=market price at the time of the commencement

[3] Whether an inheritor who became a defendant in a lawsuit claiming the return of a legal reserve before the determination of a contributory portion may assert as a defense that his/her contributory portion should be deducted out of the inherited property (negative), and whether a claim for the determination of a contributory portion is allowed solely on the ground that a claim for the return of a legal reserve was made without a

[1] Legal reserve of inheritance shall be calculated on the basis of the amount calculated by adding the value of the property donated to the ancestor for one year prior to the commencement of the inheritance to the value of the property of the inheritee at the time of the commencement of the inheritance, and the amount calculated by deducting the amount of the inheritance obligation. When one of the co-inheritors receives a donation from the inheritee, it shall be included in the basic property for calculating the legal reserve

[2] The scope of return of legal reserve of inheritance is calculated on the basis of the amount of legal reserve of inheritance calculated by multiplying the amount of the property received by the claimant for legal reserve of inheritance by the ratio of legal reserve of inheritance. In calculating the amount of legal reserve of inheritance, the market price of the property received by the obligor shall be calculated at the time of the commencement of inheritance. Thus, even if part of the property was already disposed of before the commencement of inheritance, it cannot be excluded from the basic property for calculation of legal reserve of inheritance, and even in this case, the amount of legal reserve of inheritance shall be calculated on the basis of the market price at the time of such disposition or the market

[3] Before a co-inheritors’s agreement or a family court’s decision on a contributory portion becomes final and conclusive, the Defendant’s heir cannot assert as a defense that his/her contributory portion should be deducted out of the inherited property, and it is not allowed to claim a determination on a contributory portion solely on the ground that there was a claim for a refund of a contributory portion without a trial

[1] Articles 113 and 1115 of the Civil Act / [2] Articles 1113 and 115 of the Civil Act / [3] Articles 1008-2 and 1113 of the Civil Act

[1] [2] Supreme Court Decision 2004Da51887 decided Jun. 23, 2005 (Gong2005Ha, 1228) / [2] Supreme Court Decision 95Da17885 decided Feb. 9, 1996 (Gong1996Sang, 904) / [3] Supreme Court Order 99S28 dated Aug. 24, 199 (Gong199Ha, 2211)

Plaintiff 1 and three others (Attorney Do Young-young, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jae-won, Counsel for defendant-appellant)

April 18, 2007

1. On May 12, 2006, the Defendant shall implement the procedure for the registration of ownership transfer on the basis of the return of legal reserve of inheritance on May 12, 2006 with respect to one-half share of each of the real estates listed in the separate sheet No. 1

2. The defendant shall pay to the plaintiffs 64,519,138 won with 5% interest per annum from May 13, 2006 to May 16, 2007 and 20% interest per annum from the next day to the day of complete payment.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged by comprehensively considering the following facts: Gap evidence 1 to 26, Gap evidence 1 to 17, Gap evidence 4-1 to 26, Eul evidence 1 to 5, Eul evidence 2-1, Eul evidence 2-2, the head of this court's construction headquarters, the head of Gangseo-gu Busan Metropolitan City, the head of Gangseo-gu Busan Metropolitan City, and the overall purport of the arguments as a result of the appraisal commission for the category of appraiser Park Jong-dae.

A. The non-party 1 (hereinafter “the deceased”) died on April 10, 2006 and the defendant, the dependent, the plaintiffs, and the non-party 2 inherited the deceased. The share of inheritance is 1/6 each.

B. On October 5, 190, the Defendant shall receive from the Deceased the registration of ownership transfer made on September 7, 1990 for each real estate listed in the Schedule 1, 4, 5, 7, 9 through 13 attached hereto; (2) on March 29, 206, the registration of ownership transfer made on March 15, 2006 for each real estate listed in the Schedule 1, 2, 3, 6, and 8 attached hereto; (3) on October 5, 190, the registration of ownership was completed on September 7, 190 for each real estate listed in the Schedule 1, 4, 5, 7, 9, 9 through 13; (4) on each real estate mentioned in the Attached List 2, 12, 13, 300, 305, 130, 205, 205, 30, 201, 30, 205, 200

C. Meanwhile, the real estate in paragraph (2)(3) above was sold to another person or acquired through consultation by the Busan Metropolitan City as shown below: The market price of the above real estate at the time of commencement of inheritance is 641,414,670 won in total as shown below:

본문내 포함된 표 항목 증여 후 처분 상속 개시 당시 시가 (원) 1 2004. 5. 28. 부산광역시 협의취득 24,244,000 2 1,653,000 3 54,896,000 4 1999. 3. 5. 부산광역시 협의취득 80,367,000 5 49,063,000 6 2004. 5. 28. 부산광역시 협의취득 46,136,000 7 1999. 3. 5. 부산광역시 협의취득 45,150,000 8 1998. 11. 23. 피고가 소외 3에게 매각 35,072,130 9 13,722,540 10 2002. 3. 4. 피고가 소외 4에게 매각 43,845,000 11 1998. 11. 23. 피고가 소외 3에게 매각 247,266,000 합계 ？ 641,414,670

D. On May 12, 2006, the complaint of this case containing the plaintiffs' expression of intent to recover legal reserve of inheritance to the defendant was served on the defendant.

2. Determination:

A. Occurrence of liability for the return of legal reserve of inheritance

According to the above facts, pursuant to the provisions of Articles 1112, 1113, and 1115 of the Civil Act, the defendant is responsible for returning the difference in the legal reserve of the plaintiffs among the property of this case to the plaintiffs as seen in paragraphs (1), (2), and (3) above.

(1) Calculation of shortage in legal reserve of inheritance

The calculation method of each shortage in legal reserve of inheritance of the plaintiffs is as follows:

Shortage in legal reserve of inheritance = Amount of basic property [the amount of active property in the calculation of legal reserve of inheritance + the amount of donations ? the amount of inheritance debts 】 ratio of each legal reserve of inheritance - the amount of special profits of the plaintiffs - the amount of net inheritance (the amount of active property to be inherited - the amount of inheritance debts)

(2) Basic assets in calculating legal reserve of inheritance

Legal reserve of inheritance shall be calculated on the basis of the amount calculated by adding the value of the property donated for one year prior to the commencement of the inheritance to the value of the active property of the inheritee at the time of the commencement of the inheritance, and the amount calculated on the basis of the amount calculated by deducting the amount of inherited property. If one of the co-inheritors receives a donation from the inheritee, regardless of whether the donation was made for one year prior to the commencement of the inheritance, it shall be included in the basic property for the calculation of the entire legal reserve of inheritance regardless of whether the donation was made for one year prior to the commencement of the inheritance. According to the above facts of recognition, the Defendant does not appear at the oral argument in the circumstance that there was another active inheritance or the deceased

(3) Calculation of shortage in legal reserve of inheritance or legal reserve of inheritance

The plaintiffs' amount of legal reserve of inheritance and shortage in legal reserve of inheritance are health, and the amount of legal reserve of inheritance is equivalent to the amount calculated by the ratio of 1/12 (1/6 x 1/2) of the plaintiffs' legal reserve of inheritance to the total value of the gift property of this case. However, in light of the fact that the return of legal reserve of inheritance is in principle and there is no net amount of inheritance of the plaintiffs, the shortage in legal reserve of inheritance of the plaintiffs is equal to 1/12 of the property of this case

B. Judgment on the defendant's assertion

(1) The part concerning the basis property in calculating the legal reserve of inheritance and the standard for calculating the value thereof

The defendant asserts that the real estate listed in attached Tables 1 through 11 among the property in this case among the property in this case is disposed of by the defendant according to the deceased's purport, and the proceeds from the disposal of the property is used to repay the plaintiffs' school expenses, marriage expenses, etc., and to support the deceased, and that the actual proceeds from the disposal of the property in this case is much less than the market price at the time of the commencement of the inheritance, and that the market price of each of the property in this case has increased by efforts such as land category change and banking by the defendant. Thus, the plaintiffs who are well aware of these circumstances cannot seek a return of legal reserve of inheritance as at the time of the commencement of the market price (in particular, about the property already disposed, about the property in this case).

However, the scope of return of legal reserve of inheritance is based on the amount of legal reserve of inheritance calculated by multiplying the property by the ratio of legal reserve of the claimant for legal reserve of inheritance at the time of the commencement of inheritance. In calculating the amount of legal reserve of inheritance, the market price of the property donated to the obligor at the time of the commencement of inheritance should be calculated as at the time of the commencement of inheritance. Thus, even if part of the property was already disposed of before the commencement of inheritance, it cannot be excluded from the basic property for the calculation of legal reserve of inheritance, and even in this case, it is reasonable to view that the amount of legal reserve of inheritance should be calculated based on the market price at the time of the commencement of inheritance, not from the market price at the time of the disposal or the actual disposal

Therefore, we cannot accept the defendant's above assertion from other perspectives.

(2) The part concerning consideration of the contributory portion

The defendant asserts that since the defendant supported the deceased by living together with the deceased for a considerable period from around 1981 to the time of his death, and contributed to the maintenance or increase of donated property by changing the land category of each of the instant real estate into site and reclaiming property value, the defendant's contributory portion should be taken into account to the extent of 80% in calculating the legal reserve of inheritance of the plaintiffs.

However, prior to the determination of a contributory portion through an agreement among co-inheritors or a family court’s determination of a contributory portion, a contributed inheritor who became the defendant in a lawsuit claiming a forced entitlement of inheritance cannot assert as a defense that he/she would deduct his/her contributory portion out of inherited property, and the claim for determination of a contributory portion is not allowed only on the ground that a claim for a forced entitlement of inheritance was

C. Scope of return of legal reserve of inheritance

Therefore, the defendant should return to the plaintiffs the shortage in the plaintiffs' legal reserve of inheritance among the gift property of this case, if it is impossible to return originals or return originals as seen in paragraphs (1) and (2) below.

(1) The portion of the original return

The defendant is obligated to implement the registration procedure for transfer of ownership on May 12, 2006 with respect to one-half share of each real estate listed in the separate sheet No. 1 among the pertinent donated property of this case to the plaintiffs.

(2) The refund of value

According to the above facts, from among the donated property in this case, each real estate listed in attached Tables 1 through 11 of the annexed Schedules 2 was already disposed of in different ways, and it was impossible to return its original property. Since the Defendant donated 132,815,000 won for the acquisition compensation for each real estate listed in attached Tables 2 and 132,815,00 from the deceased among the annexed Schedules 2 List, the Defendant, as a refund of value, is obligated to pay to the plaintiffs the delayed payment rate of KRW 64,519,139 [64,229,670 [64,414,670 won (attached Tables 2 and 11) + the total value of each real estate listed in the annexed Schedules 1 through 11 + agreed acquisition compensation + KRW 132,815,000] x annual interest rate of KRW 1/12,519,138, and delay damages from the next day of this case’s complaint to 205.15% of this case.

3. Conclusion

Therefore, the plaintiffs' claims of this case are justified, and all of them are accepted, and it is so decided as per Disposition.

[Attachment] List of Real Estate: omitted

Judges Park Jae-man (Presiding Judge)