The nature of a lawsuit seeking cancellation registration against a reference heir on the ground that ownership or ownership due to inheritance belongs to ownership or ownership due to inheritance

In a case where, on the premise that a person is a true inheritor with respect to inherited property, claims the reversion of property rights such as ownership or right of share, etc. due to such inheritance and claims the cancellation, etc. of registration of real estate which is the inherited property against some co-inheritors who have inherited the property, if the claim that the ownership or right of share belongs to the cause of inheritance, then this lawsuit constitutes a lawsuit for recovery of inheritance as stipulated in Article 999 of the Civil Act, regardless

Article 999 of the Civil Act

Supreme Court Decision 79Da854 delivered on January 27, 1981, 83Da600, 83Meu2056 Delivered on February 14, 1984

Plaintiff 1 and one other

Korea

Daegu High Court Decision 82Na1611 delivered on October 20, 1983

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal by the defendant litigant are examined.

According to the plaintiffs' complaint and records of this case, since each real estate of this case was originally owned by the plaintiffs and the deceased non-party 2, a co-defendant of the original judgment of the court below, died on October 3, 1961, the court below held that the above co-defendant of the court below, the head of the deceased, the deceased non-party 1 and other children, and the non-party 3, 4, and 5 jointly inherited the real estate. The court below's co-defendant of the court below's decision that the deceased non-party 2 was deceased on May 4, 1971, issued a false copy stating that it was deceased on October 3, 1958 at the time of enforcement of the former Civil Act, and completed the registration of transfer of ownership in order after it was registered under the other defendants' name, it is clear that the plaintiff's co-inheritors and the heir of the above co-inheritors were not entitled to the above co-inheritors's ownership transfer as the reason for cancellation of the above real estate's ownership transfer registration.

However, under the premise that a person is a genuine inheritor with respect to inherited property, if, on the premise that he/she is a true inheritor, a title inheritor or a part of co-inheritors who only inherited property claims cancellation, etc. of the registration of the real estate which is inherited property, if the ownership or the right of share belongs to the cause of inheritance, then this lawsuit becomes a lawsuit for inheritance recovery under Article 999 of the Civil Act, regardless of the cause of the claim. (See Supreme Court Decisions 79Da854 delivered on January 27, 1981 and 83Da600,83Meu2056 delivered on February 14, 1984, etc.)

Therefore, in this case, as long as the assertion that the ownership or the right of share belongs to the inheritance in the case of a claim for cancellation, etc. of the registration of real estate which is inherited property, it shall be deemed as a lawsuit for the recovery of inheritance under Article 999 of the Civil Act regardless of the cause of the claim, and in this case, there shall be the application of the exclusion period under Article 982 (2) of the Civil Act which is applicable mutatis mutandis by Article 999 of the Civil Act. In this case, without any other explanation, the judgment of the court below was made that in this case, the above exclusion period cannot be applied in this case on the premise that the lawsuit by the plaintiffs is not an action for the recovery of inheritance under Article 999 of the Civil Act, on the premise that the lawsuit by the plaintiffs is not an action for the recovery of inheritance under Article 999 of the Civil Act.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court which is the original court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Jong-sung (Presiding Justice)

Since the fixed number of judges of the Supreme Court is during overseas business trips, it is impossible to sign and seal.The fixed number of judges of the Supreme Court.