Where the period of disappearance has expired at the time of the enforcement of the former Civil Code but is declared missing after the enforcement of the Civil Code, the inheritance relationship

Article 100 of the Civil Code shall apply to inheritance even if it is a case of June 25, 1955, which is the time of the expiration of the period of disappearance as long as Gap received a report of disappearance on July 14, 1984 after the enforcement of the Civil Code, even though it is the time of the expiration of the period of disappearance, according to Article 25(2) of the Addenda of the Civil Code.

Article 100 of the Civil Code, Article 25 (2) of the Civil Code

[Judgment of the court below]

Defendant

Seoul High Court Decision 87Na3587 delivered on December 28, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal Nos. 1 and 2 by the Plaintiff’s attorney are also examined.

According to Article 25 (2) of the Addenda of the Civil Code, in a case where the family head or the inheritance of property commences due to the adjudication of disappearance, if the disappearance is declared after the enforcement date of the law, the order of inheritance, and the provisions of the current Civil Code shall apply to the inheritance portion and the other inheritance portion. Thus, in this case, inasmuch as the non-party 1 was declared missing on July 14, 1984 after the enforcement date of the Civil Code with his wife and children, the time when the termination is considered to be the expiration date of the adjudication of disappearance, even though it is the biological mother who is alive among parents pursuant to Article 100 of the Civil Code, regardless of whether the defendant who is the surviving relative is the same as his father at the time of enforcement of the law, the judgment below is just and there is no violation of the legal principles as to inheritance such as theory of lawsuit and any violation of the rules of evidence or incomplete deliberation.

In addition, the issue is that the real estate of this case was originally owned by the deceased non-party 2, who is the husband of the plaintiff, and completed the registration of ownership transfer under the name of non-party 1, who is the grandchild, but there is no evidence supporting this in the records, and the judgment below which rejected the plaintiff's title trust

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 Kim Sang-won (Presiding Justice) Lee Jae-won (Presiding Justice)