Claimant 1 and 3 others

An intervenor;

The deceased Principal of the case

Suwon District Court Decision 2008Radan1360 Decided July 30, 2010

1. The adjudication of the first instance shall be revoked;

2. The Intervenor (the Re-Appellant of the Supreme Court’s judgment) is dismissed from office of the executor of the will of the case (resident registration number omitted).

3. All expenses for adjudication shall be borne by the inherited property.

The same shall apply to the order.

1. Facts of recognition;

In full view of all the supporting materials bound in the records of this case and the overall purport of the examination, the following facts can be acknowledged:

A. On December 25, 2007, the principal of the instant case where the decedent was the deceased (hereinafter “the decedent”) died, and the heir is Nonparty 1 (the person other than the applicant for the judgment of the Supreme Court) and his/her children and Nonparty 2.

B. On December 13, 2007, the inheritee distributed the legacy to the inheritor and to the non-applicant 3, who are the non-applicant 2’s children, through No. 700, 2007, and made a will to designate the intervenor as the executor.

C. Since the commencement of inheritance, the Intervenor became aware that most of the financial assets referred to in the above will were already withdrawn.

D. The Intervenor demanded the return of the money already withdrawn to the claimant, and kept the amount of approximately KRW 123 million, which had not yet been withdrawn, from March 10, 2008 to the Intervenor’s bank account (Account Number omitted) from March 31, 2008.

E. On June 10, 2008, the claimant and the non-applicant 1 received a decision on the provisional seizure of the claim amounting to KRW 120 million against the intervenor as the preserved right against the intervenor from the Busan District Court Branch of the Incheon District Court (No. 2008Kahap532).

F. On October, 2008, the Intervenor filed a complaint with the Busan District Public Prosecutor’s Office for the charge of embezzlement, and rejected the Intervenor’s distribution of the money in accordance with a testamentary document against the Intervenor’s bank account by reason of the following: (a) regarding real estate, the Intervenor and the applicant Nonparty 1 followed the procedures for ownership transfer registration based on testamentary gift according to the content of will; (b) regarding financial assets, the Intervenor filed a complaint with the Incheon Public Prosecutor’s Office for the charge of embezzlement on the ground that “the appellant voluntarily withdrawn and stored most of the petitioners and consumed them individually

G. On October 17, 2008, with respect to the Intervenor’s complaint against the Intervenor, the Prosecutor’s Office rendered a decision that “not guilty” was due to lack of evidence on October 17, 2008, and the Intervenor filed an application for provisional seizure of real estate against the claimant on the 22th day of the same month with the right to demand testamentary gift performance as the preserved right, and received the provisional seizure order from the above court on the 30th day of the same month.

H. The right to claim the performance of testamentary gift, which is the right to preserve the above provisional attachment, was held by the applicant and the applicant and the non-applicant 2 to the claimant, but the non-applicant 1 received all the inherited property on the testamentary document at the time, and the intervenor did not request the provisional attachment from the non-applicant 1. Meanwhile, among the objects of provisional attachment, housing owned by the claimant 2 who is not related to the inherited property was also included.

I. On April 16, 2009, the claimant and the non-applicant 1 filed a lawsuit to the effect that the amount of money which was withdrawn against the intervenor as the District Court 2009Kadan17806 decided on April 16, 2009 was directly withdrawn by the decedent, and thus, it conflicts with the will of the decedent, and thus the will of the decedent as to the part in conflict is invalid. The lawsuit is pending at the time of the decision of this case.

j. Meanwhile, the Intervenor was dissatisfied with the Prosecutor’s decision to “suspected” and applied for a ruling by the Seoul High Court (Seoul High Court) No. 2009 early 25, but on May 11, 2009, rendered a ruling of “Dismissal of Application” by the above court.

2. Determination

In order to dismiss an executor, the executor must neglect his/her duties or there is an unreasonable reason to dismiss the executor. In this case, there is a dispute between the intervenor and the claimant with respect to the validity of his/her will based on a notarial deed. ② According to the records and the whole purport of the examination of this case, the non-applicant 2 is deemed to have a conflict between the intervenor and the claimant separately receive testamentary gift other than the property mentioned in the above notarial deed and the claimant with respect to the property bequeathed separately, and the dispute between the intervenor and the claimant seems to have been partially related to the non-applicant 2. ③ There is a conflict between the two inheritors, even though there is a dispute, the intervenor's arbitrary attachment of the house owned by the claimant 2, or the provisional attachment of the inherited property in the notarial deed is not allowed by the non-applicant 1, and the intervenor's claim for removal of the inherited property in the notarial deed is not proper to the extent that the intervenor's rights and duties are not clearly related to the execution of the will, but to the extent that the intervenor's claim for removal of the property is not reasonable.

3. Conclusion

If so, the claimant's claim is reasonable, and the judgment of the court of first instance, which has different conclusions, is unfair, so it is revoked, and it is decided as per Disposition by accepting the appellant's appeal and dismissing the intervenor from the office of the executor.

Judges Jeong-won (Presiding Judge)