[1] In a case where an inheritor files a report on a qualified acceptance, whether an inheritance obligee is able to enforce compulsory execution against the inheritor’s inherent property (negative in principle), and whether a claim can be satisfied only from the inherited property (affirmative)

[2] In a case where an inherent obligee of a qualified acceptor, who is not an inheritance obligee, acquires a security right to inherited property, whether the obligee may assert the preferential status (negative) / In a case where an obligee in inheritance fails to obtain satisfaction of a claim from the inherited property, whether the inherent obligee of the qualified acceptor may conduct compulsory execution by taking the inherited property as a liability property (negative in principle), and whether the same applies to a case where the inherent obligation of the qualified acceptor is a tax obligation (affirmative in principle)

[1] Article 1028 of the Civil Code provides, “The inheritor may approve the inheritance on the condition that he/she shall repay his/her obligation and testamentary gift to the extent of the property to be acquired by the inheritance.” If an inheritor files a report on a qualified acceptance pursuant to the above provisions, the liability of a qualified acceptor for the obligation of the inheritee is limited to inherited property, and as a result, an inheritor may not perform compulsory execution against the inheritor’s inherent property, and may only obtain satisfaction of claims from the inherited property, unless there are special circumstances

[2] Where an inherent obligee of a qualified acceptor who is not an inheritance obligee has acquired a security right such as a mortgage on inherited property, the preferential relationship between the obligee who has acquired the security right and the obligee may be in accordance with the general principle under the Civil Act and the obligee may not claim the preferential status of the obligee. However, barring any circumstances such as having acquired a security right on inherited property, it is consistent with the principle of equity or with the purport of the qualified acceptor system to deem that an inherent obligee of a qualified acceptor is unable to perform compulsory execution against an inherited property by taking the inherited property as the inherent property of a claim under the status that the obligee has failed to obtain the satisfaction of the claim from the inherited property as the inherited property, and this is also the same in cases where a

[1] Articles 1028, 1030, 1031, 1032, 1033, and 1034 of the Civil Act / [2] Articles 1028, 1030, 1031, 1032, 1033, and 1034 of the Civil Act

[2] Supreme Court en banc Decision 2007Da77781 Decided March 18, 2010 (Gong2010Sang, 737)

National Agricultural Cooperative Federation

Korea

Daegu District Court Decision 2015Na305298 Decided November 26, 2015

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Article 1028 of the Civil Act provides, “An inheritor may approve an inheritance on the condition that the inheritor’s obligation and testamentary gift should be repaid to the extent of the property to be acquired by the inheritance.” If an inheritor files a report on a qualified acceptance pursuant to the above provisions, the liability of a qualified acceptor for the obligation of the inheritee is limited to inherited property, and as a result, an inheritor may not perform compulsory execution against the inheritor’s inherent property, and may only obtain satisfaction of a claim from the inherited property, unless there are special circumstances

Where the inherent obligee of a qualified acceptor who is not an inheritance obligee has acquired a security right such as a mortgage on inherited property, the preferential relationship between the obligee who has acquired such security right and the obligee may be in accordance with the general principle under the Civil Act and the obligee may not assert preferential status (see Supreme Court en banc Decision 2007Da77781, Mar. 18, 2010). However, barring any circumstances such as the acquisition of a security right on inherited property, it is consistent with the principle of equity or with the purport of the qualified acceptance system to deem that it is impossible to enforce compulsory execution on the inherited property by taking the inherited property as the inherent property of the inherited property under the circumstance that the obligee has failed to meet his/her claim from the inherited property, and even if the inherent obligation of the qualified acceptor is a tax obligation, this is the same if it is not related to the pertinent tax or additional dues imposed on the inherited property itself

2. According to the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted, the following facts are revealed.

A. On September 5, 2002, the deceased non-party 1 died, and the remaining inheritors except non-party 2 among their inheritors have renounced their inheritance, and Non-party 2 reported qualified acceptance and accepted them.

B. In the lawsuit filed against Nonparty 2 on May 2, 2014, the Plaintiff received a ruling of recommending reconciliation that “Nonindicted 2 shall pay to the Plaintiff 81,138,32 won within the scope of the property inherited from the Deceased, and to the Plaintiff 31,54,723 won per annum from February 25, 2014 to March 29, 2014, 12% per annum from March 2014, and 20% per annum from the next day to the date of full payment,” which became final and conclusive around that time.

C. On September 1, 2014, the Plaintiff filed an application for compulsory auction on the said real estate on September 15, 2014, based on the decision of recommending reconciliation, with respect to the compulsory auction on September 15, 2014, with respect to the real estate owned by Nonparty 2,165 square meters prior to ( Address 1 omitted) and ( Address 2 omitted) forest land 2,380 square meters, etc.

D. The Defendant filed a claim for delivery in the above compulsory auction procedure as a tax claim against Nonparty 2, such as value added tax, and the said tax is not imposed on the inherited real estate itself.

E. The auction court prepared a distribution schedule of KRW 30,00,000, out of KRW 88,588,000 to be distributed to Nonparty 3, the mortgagee of the right to collateral security, and KRW 58,588,00,00, in preference to the Plaintiff. On April 2, 2015, the Plaintiff stated an objection against the entire amount distributed to the Defendant on the date of distribution, and filed a lawsuit of demurrer against the distribution of the instant case.

3. Examining these facts in light of the legal principles as seen earlier, the sales price of the above real estate, which is inherited property, shall be preferentially distributed to the Plaintiff, who is an inheritance obligee, rather than the Defendant, who was the inherent obligee of Nonparty 2, who did not acquire a security right, such as mortgage, etc. regarding the above real estate, and

Nevertheless, the lower court determined otherwise that the measures of the auction court distributed to the Defendant prior to the Plaintiff were lawful. In so determining, the lower court erred by misapprehending the legal doctrine on qualified acceptance, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error has merit.

4. Therefore, 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 Kim So-young (Presiding Justice)