[1] Whether Article 1003 (2) of the Civil Code, which provides that a fraudulent act by the inheritee alone succeeds to inheritance by representation prior to a sibling of the inheritee, is unconstitutional (negative)

[2] Whether inheritance by representation is possible where simultaneous death is presumed (affirmative)

[3] Where a child of the inheritee died before the commencement of the inheritance, the inheritance of the grandchild of the inheritee shall be done by proxy

[1] In our country, inheritance by representation has been recognized for a long time, and the Civil Act enacted on February 22, 1958 also recognized as inheritance by representation. The Civil Act amended on January 13, 1990 revised as follows: recognition of inheritance by representation is against gender equality and father-child equality; ② Article 11(1) of the Constitution of the Republic of Korea provides that any person shall not be discriminated against in all areas of political, economic, social and cultural life of the inheritee. Article 36(1) of the Constitution provides that marriage and family life of the inheritee shall be established and maintained on the basis of gender equality; ③ It is difficult for the State to ensure that there is no legislative discretion on inheritance by representation of the inheritee; ③ it is difficult for the deceased to determine the status of a sibling, who is a father or mother of the inheritee, or who provides nursing or economic support for his or her father or mother in a modern society; ⑤ It is a matter of inheritance legislation that is more than that of the deceased to protect his or her spouse's inheritance by inheritance by inheritance.

[2] The inheritance system originally aims to promote fairness by protecting the expectation of inheritance by substitute and to guarantee the livelihood of surviving spouse. The presumption of simultaneous death also has the legislative purport of the legislation in that the simultaneous death of natural and scientific meaning can be treated as the death at the same time where it is difficult to win or where it is impossible to prove the death of the deceased. The lineal descendant or spouse of the lineal descendant or sibling who is to become the heir of the deceased is the deceased before the commencement of the inheritance. If the person died after the commencement of the inheritance, both inheritance will be conducted on the part of the deceased through substitute. If the person died after the commencement of the inheritance, that person's death is presumed to have died at the same time, the presumption that the lineal descendant or his spouse died at the same time is unfair compared to the presumption of simultaneous death of the deceased, and the presumption of simultaneous death of the deceased lineal descendant and the lineal descendant of the deceased will be interpreted as 10 years prior to the commencement of inheritance of the inheritance of the deceased under the Civil Code.

[3] Where a child of the inheritee died before the commencement of the inheritance, the grandchild of the inheritee is not a principal inheritance but a substitute inheritance.

[1] Articles 101, 103(2), 11(1), and 36(1) of the Civil Act / [2] Articles 30, 1001, and 103(2) of the Civil Act / [3] Articles 1000, and 101 of the Civil Act

[3] Supreme Court Decision 94Da11835 delivered on April 7, 1995 (Gong1995Sang, 1817) Supreme Court Decision 95Da27769 delivered on September 26, 1995 (Gong195, 3530)

Plaintiff 1 and six others (Law Firm Han-dong Law Office, Attorneys Yu-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Yu Chang-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Na21825 delivered on February 11, 1999

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. The facts duly affirmed by the court below (the fact that there is no dispute) are as follows.

A. The deceased non-party 1, who was married with the deceased non-party 3 and children, was the deceased non-party 4, who was his wife, and the above non-party 3 married with the defendant and got married to the deceased non-party 5 and the deceased non-party 6, who was his wife, and the above deceased non-party 4 had the deceased non-party 8, who was married with the deceased non-party 7, the wife.

B. However, on August 6, 1997, all family members other than the deceased non-party 1 and the deceased non-party 4, all of the deceased non-party 1 and the deceased non-party 3 and their offspring, and the deceased non-party 1 et al. were killed in all of the crashs of the aircraft on board at the Nimitz Hl of the Autonomous Ordinance of the United States of America on August 6, 1997. The deceased non-party 1 did not have any other lineal descendant or lineal ascendant at the time (under these facts, according to the above facts, the deceased non-party 1 is presumed to have died in the same danger together with the deceased's wife as well as his/her lineal descendant, his/her grandchildren, his/her grandchildren, and his/her lineal descendant and his/her lineal descendant's spouse as well as his/her lineal descendant and his/her lineal descendant's

C. The Defendant completed the registration of transfer of ownership on November 8, 1997 with respect to the 470.4 square meters in woodendong, Yangcheon-gu, Seoul, which was owned by the deceased Nonparty 1.

D. All of the plaintiffs are siblings of the deceased non-party 1.

2. Regarding ground of appeal No. 1

① Traditionally, our country has been recognized as inheritance by substitute for a long time. The Civil Act enacted on February 22, 1958 also recognized as inheritance by substitute for a long time. The revised Civil Act amended on January 13, 1990 that recognized inheritance by substitute for a long time is against gender equality and father equality. ② Article 11(1) of the Constitution provides that any person shall not be discriminated against in all areas of inheritance by sex. Article 36(1) of the Constitution provides that marital and family life of the inheritee shall be established and maintained on the basis of equality of fostering, and it is difficult for the State to ensure that there is no legislative purport that the inheritance by substitute for a child or mother of the inheritee may be established in a modern society, and that there is no legislative purport that the inheritance by substitute for a child or sibling of the inheritee would be unconstitutional than that of the inheritee, and that there is no legislative purport that the inheritance by substitute for a child or sibling of the inheritee would be unconstitutional than that of the inheritee.

3. Regarding ground of appeal No. 2

In addition, the legislative purpose of the inheritance system is to ensure fair and livelihood of the surviving spouse by protecting the expectation of inheritance by substitute, and the presumption of simultaneous death is to treat the same as a case where it is difficult to win or lose, or where it is impossible to prove the death of the surviving spouse, at the same time, to treat it as a death. Therefore, the lineal descendant or spouse of a lineal descendant or sibling who is to become the heir of the deceased shall succeed to the inheritance by substitute, and if the person dies after the commencement of inheritance, both cases shall succeed to the deceased's property through substitute, and if the person dies after the commencement of inheritance, the judgment of the court below is just, and there is no presumption that the deceased's lineal descendant or his spouse died at the same time, and there is no violation of the provision regarding the presumption of simultaneous death of the deceased's lineal descendant and the deceased's lineal descendant at the same time, and there is no presumption that the deceased's lineal descendant will be more unfair than the presumption of simultaneous death of the deceased's lineal descendant at the same time.

4. Regarding ground of appeal No. 3

It is reasonable to view that a grandchild of an inheritee’s deceased in whole before the commencement of the inheritance should be the grandchild of the inheritee rather than the inheritance on behalf of the deceased (the Supreme Court Decision cited by the supplemental appellate brief is related to the waiver of inheritance, and the waiver of inheritance is not the same as this case where the cause of inheritance on behalf of the deceased arose, since the cause of inheritance on behalf of the deceased was not the cause of inheritance on behalf of the deceased under the Civil Act, unlike the death of the deceased). Therefore, in a case where a grandchild of the inheritee died before the commencement of the inheritance, the inheritance on behalf of the deceased is impossible solely inheritance on the premise of an independent view that the inheritance on behalf of the deceased is the inheritance on the premise that the inheritance on behalf of the deceased is the principal inheritance, and the inheritance on behalf of the deceased is a case where another lineal descendant of the degree of relationship, such as the latter, is alive, and it is not possible to accept any argument in the grounds of appeal that only the joint inheritance

5. Regarding ground of appeal No. 4

The argument in the grounds of appeal that Article 1003(2) of the Civil Act provides that the spouse of a lineal descendant of an inheritee may inherit by proxy only in the case of a lineal descendant of an inheritee by revising the principle of inheritance by blood relatives, and that the spouse of a lineal descendant of an inheritee shall be limited to the inheritance by blood relatives of an inheritee in any case, and that the spouse of a lineal descendant of an inheritee shall be limited

6. Regarding ground of appeal No. 5

Even if under the specific circumstances of the instant case, even if the Defendant’s sole inheritance of the deceased Nonparty 1’s property is not against the legal sentiment of the people, as long as Article 1003(2) of the Civil Act is effective, the Defendant’s right to inherited property itself cannot be denied. Moreover, as the contributory portion regarding inherited property is considered only when the contributor takes into account within the order of inheritance, the Defendant is only the deceased Nonparty 1’s heir of the property, and the Plaintiffs are not the deceased Nonparty 1’s heir of the property, and the Plaintiffs contributed to the process of forming the property of the deceased Nonparty 1 in this case, not the heir of the property, need not further examine. The assertion

7. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Lee Han-gu (Presiding Justice)