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

As a result of an agreement and division under Article 1013 of the Civil Act with respect to inherited property among co-inheritors, one of the co-inheritors acquired property exceeding his own share of inherited property, it shall be deemed to have been succeeded from the inheritee at the time of the commencement of inheritance, and it shall not be deemed to have been donated from other co-inheritors.

Article 29 of the Inheritance Tax Act, Articles 1013 and 1015 of the Civil Act

Supreme Court Decision 85Nu70 Decided October 8, 1985

Plaintiff

Head of the Cleanness Tax Office

Seoul High Court Decision 85Gu396 delivered on December 11, 1985

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

According to Article 1015 of the Civil Act, the division of inherited property is effective retroactively from the time of the commencement of the inheritance. This means that the property belonging to each co-inheritors by division has already been succeeded to the person directly divided from the inheritee at the time of the commencement of the inheritance, and it does not result in the transfer of inheritance among co-inheritors by division.

Therefore, even if one of the co-inheritors acquires the property exceeding his own share of inheritance as a result of an agreement division under Article 1013 of the Civil Act with respect to inherited property among co-inheritors, it shall be deemed to have been succeeded from the inheritee at the time of the commencement of inheritance, and it shall not be deemed to have been donated from other co-inheritors (see Supreme Court Decision 85Nu70 delivered on October 8, 1985).

The judgment of the court below is just in finding the fact that an agreement has been divided between co-inheritors, including the plaintiff, through such evidences, and it is not erroneous in the misapprehension of legal principles as mentioned above, and there is no error of incomplete deliberation, mistake of facts, or misapprehension of legal principles.

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 Justices.

Justices Kim Jong-sik (Presiding Justice)