In case where one of the co-inheritors acquires the property exceeding his own share of inherited property by an agreement division of inherited property, whether such an act shall be considered as a donation from other co-inheritors

Even if one of the co-inheritors acquires the property exceeding his own share of inheritance as a result of an agreement on inherited property between co-inheritors, it shall be considered as having received the property from the inheritee at the time of the commencement of inheritance, and it shall not be deemed as having received the property as a donation from other co-inheritors.

Articles 1013, 1015, 29-2 of the Inheritance Tax Act

Supreme Court Decision 86Nu14 Decided July 8, 1986

[Judgment of the court below]

The Director of Gangnam District Office

Seoul High Court Decision 86Gu50 delivered on June 19, 1986

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

We examine the grounds of appeal.

For that reason, according to Article 1013 of the Civil Act, the judgment of the court below provides that the co-inheritors may divide the inherited property at any time, except where the inheritee has determined the method of division of the inherited property by will or prohibited division. Article 1015 of the same Act provides that the division of the inherited property shall be retroactively effective at the time of the commencement of the inheritance. Thus, even if one of the co-inheritors acquired the property exceeding his own share of inherited property by mutual agreement on the inherited property, it shall be deemed to have been succeeded from the inheritee at the time of the commencement of the inheritance, and it shall not be deemed to have been donated from other co-inheritors, not from the other co-inheritors, because the plaintiff received the inherited property exceeding his own share of inherited property at the time of the commencement of the inheritance, which is based on the presumption that the inheritance exceeding his own share of inherited property was succeeded from the inheritee at the time of the commencement of the inheritance, and it shall be justified and there is no error in the misapprehension of legal principles, such as theory of lawsuit.

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

Justices Kim Jong-sik (Presiding Justice)