(영문) 서울중앙지방법원 2017.12.13. 선고 2017가합516013 판결

As to the Plaintiff, the Defendant B’s share of 1/32 of the real estate listed in the separate sheet Nos. 14 through 17, shares of 1/48 of the real estate listed in the separate sheet No. 14 through 17, shares of 3/160 of the real estate listed in the separate sheet No. 18 of the attached sheet No. 1, and shares of 3/160 of the real estate listed in the separate sheet No. 18, Defendant C shall pay 1/32 of the real estate listed in the separate sheet No. 1, shares of 1/48 of the real estate listed in the separate sheet No. 1, 14 through 17, shares of 1/16 of the real estate listed in the separate sheet No. 1, 14 through 16 of the real estate listed in the separate sheet No. 1, and the transfer registration procedure for ownership transfer registration for Defendant B, C. 78,05,76, 767, and 56.5.6

Reasons

1. Basic facts

A. Status, etc. of the parties

1) On August 6, 1945, the network E (hereinafter referred to as “the deceased”) married with F on August 6, 194, left Plaintiff A, G, H, and I as his child, and consulted with F on August 8, 1962.

2) On February 27, 1963, the Deceased re-exploited with J on February 27, 1963, and L as his child. On April 22, 1965, the deceased was married with J.

3) On October 25, 1965, the Deceased, remarriedd with M on October 25, 1965, had Defendant D (hereinafter “Defendant D”), Defendant B (hereinafter “Defendant B”); and Defendant C (hereinafter “Defendant C”); and M died on August 18, 2012.

B. Donation of the deceased’s property

1) Donation of each real estate listed in separate sheet 2

A) The Deceased donated each share in the column of “shares (B) of the same Table to Defendant B and C on the date and time indicated in the column of “Gift (A) of the same Table with respect to each real estate listed in [Attachment B] Nos. 1 through 17.

B) On April 30, 1991, the Deceased donated 1/3 of each real estate listed in Appendix 2 Nos. 14 through 16 to M respectively, and M donated all of the above shares to Defendant D on September 16, 2006.

C) On June 2, 2009, the Deceased donated 3/10 shares of the real estate listed in No. 2 No. 18 of the attached Table 2 to Defendant B.

D) On September 18, 1991, the Deceased donated each of 1/2 shares of the real estate listed in No. 2 Table 19 attached hereto to Defendant D and M, and M donated each of 1/2 shares of the real estate on September 2, 2006 to Defendant D.

E) The registration of ownership transfer was completed due to each of the above donations, and the Defendants currently own each of the real estate listed in the attached Table 2 in the same Table as indicated in the column of "shares (B) of the same Table."

2) Donation of each real estate listed in separate sheet 3

A) On March 26, 1984, the Deceased donated 1/2 shares of each real estate listed in Nos. 1 through 4 of Attached Table 3 to Defendant B and Defendant C, respectively.

B) On April 30, 1991, the Deceased donated 1/3 shares of each real estate listed in Appendix 5 through 29, respectively, to Defendant B, C, and M on April 30, 1991. Defendant B, and C inherited 1/3 shares of each of the above real estate through consultation and division on August 18, 2012, and eventually Defendant B, and C owned 1/2 shares of each of the above real estate.

C) On April 30, 1991, the Deceased donated 1/3 shares of each real estate listed in [Attachment 30 to 39] to Defendant B, C, and M respectively, and M donated 1/3 shares of each real estate to Defendant D on September 16, 2006.

D) On February 28, 1991, the Deceased donated 1/4 shares of the real estate listed in No. 40 No. 3 attached hereto to the Defendants and M on February 28, 1991, and the Defendants jointly inherited 1/4 shares of the above real estate M upon the death of M.

3) Sale, etc. of each real estate listed in the separate sheet No. 3

A) On July 6, 2015, Guri-si acquired each real estate listed in [Attachment B, and C] Nos. 1 through 4 from Defendant B, and C through consultation on public land.

B) On March 31, 2016, Defendant B and C sold each real estate (each of the said Defendants’ owned shares 1/2) listed in [Attachment Nos. 5 through 29] to A branch Construction Co., Ltd.

C) The Defendants sold all the above real estate to each purchaser listed in the column of “Buyer (F)” in the column of “sale date (e)” as to each real estate listed in the table Nos. 30 through 40 of the table No. 30.

1) In around 1987, the Deceased transferred to the United States of America (hereinafter referred to as the “U.S.”) and acquired the U.S. citizenship thereafter.

2) After a donation to the Defendants of the real estate listed in the separate sheet No. 2 and No. 3, on December 20, 2012, the Deceased donated 4/10 shares to Defendant B on December 20, 2012, among the Korean real estate in which the decedent owned on December 20, 2012, the following: (4) and (5) as to the remaining real estate other than the real estate listed in paragraphs (1) and (3/10 shares; and (2) as to the real estate other than the real estate to be acquired by the decedent after the date of the preparation of the testamentary document, the decedent bequeathed 3/10 shares to Defendant B; (3) the decedent’s financial property donated 4/10 shares to the Defendant C; (4) the real estate owned by the decedent to the Defendant; and (5) the real estate owned by the Defendant 3/15 square meters of the common house in the Dongjak-gu Seoul Metropolitan Government (No. 926 square meters of the land); and (5) the Defendant’s general house No. 315/1.

3) On August 6, 2016, the Deceased died in the New York State of the United States, and his heir is the Plaintiff, Defendants, G, H, I, and L, who are the deceased’s children.

4) The plaintiff is currently residing in the Republic of Korea, and the defendants are residing in the United States as a U.S. citizen.

【Fact-finding without dispute over the ground for recognition, Gap's evidence 1 through 4, Eul's evidence 1 (including each number in the case of provisional evidence) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. In respect of inheritance, the law of the state of the deceased is primarily applied, but the law of the State where the real estate is located shall be the law of the State where the claim for inheritance is made under the relevant provisions of the general principles of the U.S. Private International Law and the New York Law of the United States. The governing law in this case on real estate inheritance shall be the Civil Code of the Republic of Korea in accordance with the "detent or its analogical application at the time of designation of the governing law as provided by Article 9(1) of the Private International Law".

B. Since the Defendants received each immovable property indicated in the attached Tables 2 and 3, which was the entire property of the Deceased, and infringed on the Plaintiff’s legal reserve of inheritance, they are obligated to return the legal reserve of inheritance to the Plaintiff pursuant to the Civil Act

C. Therefore, the Defendants are obligated to perform the registration procedure for ownership transfer based on the return of each legal reserve with respect to shares equivalent to 1/16 of the Plaintiff’s legal reserve among the shares in each of the real estate listed in the attached Table 2, which the Defendants were donated from the Deceased. As to each real estate listed in the attached Table 3, the Defendants are obligated to pay the amount equivalent to 1/16, which is the Plaintiff’s legal reserve of inheritance, out of their value.

3. Applicable law;

A. Relevant provisions

대한민국 국제사법제3조(본국법)③ 당사자가 지역에 따라 법을 달리하는 국가의 국적을 가지는 때에는 그 국가의 법 선택 규정에 따라 지정되는 법에 의하고, 그러한 규정이 없는 때에는 당사자와 가장 밀접한 관련이 있는 지역의 법에 의한다.제9조(준거법 지정시의 반정)① 이 법에 의하여 외국법이 준거법으로 지정된 경우에 그 국가의 법에 의하여 대한민국 법이 적용되어야 하는 때에는 대한민국의 법(준거법의 지정에 관한 법규를 제외한다)에 의한다.제49조(상속)① 상속은 사망 당시 피상속인의 본국법에 의한다.② 피상속인이 유언에 적용되는 방식에 의하여 명시적으로 다음 각호의 법 중 어느 것을 지정하는 때에는 상속은 제1항의 규정에 불구하고 그 법에 의한다.1. 지정 당시 피상속인의 상거소가 있는 국가의 법, 다만, 그 지정은 피상속인이 사망시까지 그 국가에 상거소를 유지한 경우에 한하여 그 효력이 있다.2. 부동산에 관한 상속에 대하여는 그 부동산의 소재지법제50조(유언)① 유언은 유언 당시 유언자의 본국법에 의한다.Restatement of the Law, 2nd, Conflict of Laws(일반적으로 승인되는 미국 국제사법의 일반원칙)Chapter 9. Property(제9장 재산권)Topic 2, Immovables(제2절 부동산)Title G. Succession on Death(제G관 사망에 따른 승계)$ 239 Validity and Effect of Will of Land(제239조 토지에 관한 유언의 유효성과 효력)(1) Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs(유언으로 토지에 관한 이익과 이에 준하는 성질의 것이 이전되는지 여부는 토지의 소재지 법원이 적용하는 법률에 의한다).(2) These courts would usually apply their own local law in determining such questions(전항에서 토지의 소재지 법원은 그와 같은 문제를 해결함에 있어 고유한 소재지 법을 적용할 수 있다).New York State Law Estates, Powers & Trusts(뉴욕주 부동산 및 신탁법)Article 3 Substantive Law of Wills(유언에 관한 실질법)Part 5. Rules Governing Wills Having Relation to Another Jurisdiction(다른 재판관할에 관련이 있는 유언에 대한 규율규정)§ 3-5.1 Formal validity, intrinsic validity, effect, interpretation, revocation or alteration of testamentary dispositions of, and exercise of testamentary powers of appointment over property by wills having relation to another jurisdiction(제 3-5.1조 다른 재판관할과 관련이 있는 형식적 유효성, 실질적 유효성, 효력, 해석, 유언처분의 철회와 변경, 재산에 관한 지정유언집행자의 집행).(b) Subject to the other provisions of this section(본 절의 다른 규정에 따르되):(1) The formal validity, intrinsic validity, effect, interpretation, revocation or alteration of a testamentary disposition of real property, and the manner in which such property descends when not disposed of by will, are determined by the law of the jurisdiction in which the land is situated(형식적 유효성, 실질적 유효성, 효력, 해석, 부동산에 대한 유언처분의 철회와 변경, 부동산이 유언에 의하여 처분되지 않은 경우의 승계 방식은 해당 부동산의 소재지 관할법원의 법률에 따라 판단한다).

B. Determination

1) As seen earlier, the facts that the deceased had a domicile in the State of New York as a U.S. national at the time of his death are as follows. As such, the law governing his inheritance pursuant to Article 49(1) of the Private International Act shall be applied to the law of the U.S. as the State of the deceased’s home country, and the law of the State of New York shall be applied in accordance with Article 3(3) of the Private International Act, since the United States

2) Meanwhile, Article 9(1) of the Private International Act provides for the legal principle of so-called â€˜defluence at the time of the designation of a quasi-law'. However, Article 3-5.1(b)(1) of the "New Law Estrates," which the Plaintiff cited as the ground for its argument, provides that "the form of validity, practical validity, effectiveness, effect, interpretation, withdrawal and change of disposal of real estate, and the method of succession in cases where the real estate is not disposed of by will shall be determined according to the law of the competent court where the place of the pertinent real estate is located." In cases where a testament is revoked or modified, the method of succession in cases where the testament is not disposed of by will, etc., shall be governed by the law of the competent court where the pertinent real estate is located, and the provision of Article 239(1) of the "Act on the Law of Law" provides for the benefit of the land and the purpose of the designation of the land equivalent to that of the court in relation to the transfer of the real estate shall not be considered to the law of the land.

3) However, according to the above facts, each of the real estate listed in the attached Tables 2 and 3 was donated to the Defendants from March 26, 1984 to June 2, 2009, the life of the deceased, and was not bequeathed by a testamentary document prepared on December 20, 2012 by the deceased. As to the real estate for which a pre-sale donation has already been completed, there is no room to apply the pertinent provisions of the "Rules of Law", "Law of the State," "New Law, Law of the State," and "Pers & Trus" to the real estate, and therefore, it is difficult to view that any concealment of the provisions that conflict with the above provisions should be permitted in light of the purport of each of the above provisions to include the property in the Republic of Korea subject to a pre-sale legal reserve of inheritance on the ground that it should not be subject to the application of the Civil Act to the pre-sale legal reserve of inheritance on the ground that the real estate was already donated to the co-inheritors.

4) Accordingly, in the instant case where the Plaintiff asserted that the legal reserve of inheritance was infringed on the deceased’s property donated before the death, as long as it cannot be deemed that the designation of the governing law under the New York State law, a national of the deceased, is permissible, the New York State law in the United States is bound to be applied to the law on inheritance caused by the death of the deceased. The New York State law in the United States does not have any legal reserve of inheritance system in relation to inheritance. Therefore, the Plaintiff’s assertion premised on the fact that the Plaintiff’s legal reserve of inheritance was infringed on by the Defendants is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit, and it is so decided as per Disposition.