[1] The meaning of "third party" where the retroactive effect of division of inherited property is restricted under the proviso of Article 1015 of the Civil Code

[2] Where a judgment on the division of an inherited property becomes final and conclusive with respect to the division of an inherited property, the time the change in the real right to the relevant real property takes effect (i.e., when a judgment on the division of an inherited property becomes final and conclusive) / Whether a third party, who had a legal interest not compatible with the effect of the division of an inherited property before the registration is completed, may assert the effect of the division of an inherited property against the third party who did not know that the judgment on the division of an inherited property had been completed (negative), and at this time, is liable to assert and prove that the third party was aware of the judgment on

[1] Division of inherited property has its effect retroactively from the time of commencement of inheritance. However, the right of a third party is not undermined (Article 1015 of the Civil Act). This is to recognize the retroactive effect of division of inherited property and view that the co-inheritors immediately inherited the inherited property from the inheritee at the time of the death of the inheritee according to the division. However, the purpose of this is to ensure the safety of transaction by preventing a third party who has a legal interest that is not compatible before the division of inherited property from claiming the retroactive effect of division of inherited property. In this case, the third party under the proviso of Article 1015 of the Civil Act refers to not only a person who has a new interest before the division of inherited property but also a person who has acquired rights by registration, transfer

[2] When an adjudication on the division of inherited property, which covers the division of inherited property, becomes final and conclusive, the change in real rights to the relevant real estate takes effect even without registration following the adjudication on the division of inherited property pursuant to Article 187 of the Civil Act. However, considering the content and legislative intent of the proviso of Article 1015 of the Civil Act, the effect of the division of inherited property shall not be asserted against a third party who had a legal interest not compatible with the effect of the division of inherited property before the registration following the adjudication on the division of inherited property has been completed, but who did not know that the adjudication on the division of inherited property had been made. In this case, the third party’s assertion and burden of proof as to the fact that the adjudication on the

[1] Article 1015 of the Civil Act / [2] Articles 187 and 1015 of the Civil Act

[1] Supreme Court Decision 92Da31514 delivered on November 24, 1992 (Gong1993Sang, 239), Supreme Court Decision 95Da54426, 5433 delivered on April 26, 1996 (Gong196Sang, 1704)

Plaintiff (Attorney Cho Jae-chul et al., Counsel for plaintiff-appellant)

Pocheon-si and one other (Attorney Go Byung-si, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2018Na212918 decided June 28, 2019

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. Effect and effect of division of the inherited property, and the scope of a third party who does not reach such effect;

A. Division of inherited property shall take effect retroactively from the time of commencement of inheritance. However, the right of a third party shall not be prejudiced (Article 1015 of the Civil Act). This is recognized as the retroactive effect of division of inherited property, and the co-inheritors immediately inherited the inherited property from the inheritee at the time of the death of the inheritee according to the division. However, the purpose of this is to ensure the safety of transaction by preventing a third party having legal interest that is not compatible with the foregoing before the division of inherited property from claiming the retroactive effect of division of inherited property. In this case, the third party under the proviso of Article 1015 of the Civil Act refers to not only a person who has a new interest before the division of inherited property but also a person who has acquired rights by registration, delivery, etc. (see Supreme Court Decisions 92Da31514, Nov. 24, 1992; 95Da5426, Apr. 26, 1996; 95Da544433, Apr. 26, 1996).

B. Once an adjudication on the division of inherited property, which covers the division of inherited property, becomes final and conclusive, the change in real rights to the relevant real estate takes effect without registration following the adjudication on the division of inherited property pursuant to Article 187 of the Civil Act. However, considering the content and legislative purport of the proviso of Article 1015 of the Civil Act as seen earlier, the effect of the division of inherited property cannot be asserted against a third party who had a legal interest not compatible with the effect of the division of inherited property before the registration following the adjudication on the division of inherited property is completed, but who did not know that there was the adjudication on the division of inherited property. In this case, the burden of assertion and certification as to the fact that the third party was aware of the adjudication on the

2. Determination as to the instant case

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

1) On December 7, 2017, the Plaintiff, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5, who were the children of Nonparty 1 (Death on September 9, 2001), were tried to divide the inherited property with the purport of owning the real estate listed in paragraphs (1) through (3) of the attached Table of the lower judgment (hereinafter “each of the instant real estate”) and paying KRW 28,90,700 to the remaining co-inheritors, respectively (hereinafter “instant adjudication on division of inherited property”). The instant adjudication on division of inherited property became final and conclusive on December 30, 2017.

2) On March 13, 2018, Defendant 2 obtained the right to claim for the transfer registration of ownership as the preserved right, and received the decision to temporarily dispose of Nonparty 2’s shares out of each of the instant real estate as prescribed by the Daegu District Court Kimcheon Branch 2018Kadan93. Accordingly, on March 15, 2018, upon Defendant 2’s application for subrogation, Defendant 2 completed the registration of transfer of ownership (as to each of the instant real estate as to the Plaintiff, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5’s inheritance on September 9, 2001 (hereinafter “the instant real estate”) and the registration of preservation of ownership [the real estate listed in paragraphs 1 and 2 of the attached Table of the original judgment (hereinafter “the instant real estate”)] and the registration of preservation of ownership (as to the real estate listed in paragraph (3) of the attached Table of the original judgment (hereinafter “the instant real estate”).

3) On April 6, 2018, Defendant Spocheon-si received an order to seize Nonparty 3’s shares among the instant real estate Nos. 1 and 2, and completed the registration of seizure on the same day.

4) On May 8, 2018, the Plaintiff filed the instant lawsuit against Defendant 2 with respect to each of the instant real estate, and with respect to the instant real estate Nos. 1 and 2 with respect to Defendant Incheon City, the Plaintiff filed the instant lawsuit seeking consent to complete the registration of division of inherited property in accordance with the instant inherited property division trial.

5) After the decision of the first instance court of this case was rendered, Defendant Bocheon-si additionally received an order to seize Nonparty 3’s share out of the 3 real estate of this case, and completed the registration of seizure on October 22, 2018. Defendant 2 completed the registration of transfer of ownership on April 10, 2017 with respect to Nonparty 2’s share out of each of the instant real estate on November 9, 2018.

6) The Plaintiff corrected that the lower court sought the Defendants’ consent to the completion of the registration of correction as owned by the Plaintiff’s sole owner. On the other hand, as to the third real estate of this case, the Plaintiff added the Plaintiff’s claim seeking consent to the completion of the registration of correction as owned by the Plaintiff’s sole owner. Defendant 2 added the claim seeking implementation of the procedure for the registration of cancellation of ownership transfer registration to Defendant 2.

B. The lower court rejected the Plaintiff’s instant claim on the ground that the Defendants were subsequent to the adjudication on the division of inherited property, but before the registration pursuant to the content thereof was made, the Defendants, who trusted and acquired rights to the joint inheritance of Nonparty 2 or Nonparty 3, an inherited property, constituted a third party under the proviso of Article 1015 of the Civil Act.

C. However, in light of the legal principles as seen earlier, the following can be determined.

1) When a judgment on division of inherited property of this case becomes final and conclusive, the plaintiff acquires the ownership of each real estate of this case without registration following the division of inherited property.

2) In addition, even if a third party who completed the registration with legal interest not compatible with the Plaintiff’s acquisition of ownership regarding each of the instant real estate before completing the registration according to the contents of a judgment on division of inherited property, if the Plaintiff knew that there had been an inheritance on division of inherited property, the Plaintiff may claim the effect of division of inherited property against the third party.

3) In the case of Defendant 2, in light of the relationship with Nonparty 2, the date of concluding a sales contract between Defendant 2 and Nonparty 2, and the time interval between the time of confirmation of the judgment on division of the inherited property of this case and the time interval between the registration on the provisional disposition entry registration and the time interval between the registration on the provisional disposition entry registration, etc., Defendant 2 may be deemed to have known that there was a judgment on the division of the inherited property of this case at the time when the provisional disposition entry registration on each of the real property of this case was made. In addition, after the decision of the first instance court of this case, Defendant Spocheon-si additionally completed the seizure registration upon receiving the attachment order on the non-party 3’s portion of the real property of this case among the third real property of this case, it is highly probable

4) If so, the lower court should have deliberated on whether the Defendants knew that there was a judgment on the division of the inherited property of this case when the Defendants acquired rights to the shares of Nonparty 2 or Nonparty 3 among each of the instant real property.

D. Nevertheless, the lower court did not examine and determine whether the Defendants knew that there was a judgment on the division of inherited property of this case, and did not accept the Plaintiff’s claim on the sole basis of the foregoing, concluding that the Defendants constituted a third party as stipulated in the proviso of Article 1015 of the Civil Act. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of a third party, which does not affect the judgment by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)