The purport of the provision of Article 1008 of the Civil Code, and in a case where a disqualified person received a gift directly from the inheritee after the cause of disqualification for inheritance, whether such profit constitutes a special benefit (negative in principle)

The purpose of Article 1008 of the Civil Act is to treat evidentiary property as an advance payment of the inherited portion in order to ensure the fairness among co-inheritors in cases where there is a special beneficiary who received a donation of property or testamentary gift among co-inheritors, and to consider it when calculating the specific inherited portion in order to treat it as an advance payment of the inherited portion. As such, in cases where a disqualified person received a donation directly from the inheritee after the ground for disqualification arose, such income shall not be considered as an advance payment of the inherited portion in principle, since it does not receive it in the position of the inheritor. Accordingly, income of disqualified person does not constitute a special benefit

Articles 1004 and 1008 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Claimant (Attorney Lee Chang-soo, Counsel for defendant-appellant)

Plaintiff 1 and two others (Law Firm LLC, Attorneys Lee Jae-gu et al., Counsel for the plaintiff-appellant)

Other 4 et al.

Seoul High Court Order (Chuncheon) 2014B1, 2 October 15, 2014

All reappeals are dismissed.

The grounds of reappeal are examined.

1. The entitlement to a contributory portion system prescribed by Article 1008-2 of the Civil Act intends to promote the substantial equity among co-inheritors by taking into account the entitlement in calculating the entitlement to a contributory portion in a case where the co-inheritors specially supported the inheritee, or specially contributed to the maintenance or increase of the inheritee’s property. Therefore, in order to recognize the entitlement to a contributory portion, it should be recognized that the inheritee specially supported the inheritee or contributed specially to the maintenance or increase of the inheritee’s inherited property for equity among co-inheritors

In light of the above legal principles and records, the court below is just in rejecting the claimant's assertion on the contributory portion on the grounds as stated in its reasoning, and there is no error in the misapprehension of legal principles as to contributory portion

2. Where an inheritor’s disqualifications arise under Article 1004 of the Civil Act, the heir shall naturally lose the eligibility to inherit the inheritee from that time, and his/her lineal descendant or spouse shall be the inheritor instead of the disqualified person. Article 1008 of the Civil Act aims to treat the inheritance property as the advance payment of the inheritance portion in order to ensure the fairness among co-inheritors in cases where there is a special beneficiary who received a donation of property or testamentary gift from the inheritee among co-inheritors, and to take this into account in calculating the specific inheritance portion (see Supreme Court Decision 94Da16571, Mar. 10, 195, etc.). In cases where a disqualified person directly receives a donation from the inheritee after the cause of disqualifications occurred, such income shall not be considered as the advance payment of the inheritance portion in principle, and therefore, it shall not be deemed that the income of the disqualified person does not constitute special profit unless there are special circumstances.

According to the records, the deceased non-party 2 died on October 11, 2010. Among the co-inheritors, the non-party 5 attempted to murder the other party 4, who is the other party in 2003 and thereby became disqualified for inheritance. The other party 5 was the spouse 6 and the other party 10 and the other party 11. On July 27, 2010, the deceased non-party 5 knew that the land, etc. was donated to the other party 5, and the land, etc. ( Address 1 omitted) was donated to the other party 10, and it is difficult to view that the submitted evidence alone received another property from the inheritee prior to the cause for disqualification for inheritance.

Examining the above facts in light of the legal principles as seen earlier, it is justifiable in its conclusion that the court below did not consider each of the above real estate donated by Nonparty 5 to the inheritee as the special benefits of other party 6, other party 10, and other party 11 after the occurrence of the substitute, and there is no error of law by misapprehending the legal principles as to the calculation of the share of inheritance of the substitute heir, contrary to what is alleged in

3. The purport of the remaining grounds for re-appeal is that the court below's determination of the portion inherited by the deceased non-party 1 among the other party's share of inheritance has not been conducted, or uniformly calculates the portion inherited according to the statutory share of inheritance without exercising the right of explanation, and does not consider the portion of cash paid to the non-party 3 as a special benefit of the claimant. However, it is nothing more than that it is erroneous for the court below's determination of evidence selection or fact-finding which belongs to the exclusive right of the court below as a fact-finding court, and it does not err in the misapprehension of the legal principles as alleged in the grounds

4. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)