(영문) 대법원 2021.7.15. 선고 2016다210498 판결

Of the lower judgment, the part of the lower judgment regarding the claim for restitution of unjust enrichment relating to shortage in legal reserve of inheritance is reversed, and that part of the case is remanded to the Seoul Central District Court.

The remaining appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Factual basis

The reasoning of the lower judgment and the record reveal the following facts.

A. Nonparty 1 married with Nonparty 2 and had the Plaintiff, Defendant, Nonparty 3, Nonparty 4, and Nonparty 5 as his child. Nonparty 1 died on May 21, 1980, and Nonparty 2 died on September 6, 201.

B. At the time of the death of Nonparty 1, the inherited property is only an apartment of this case.

C. On October 21, 2013, the Defendant filed a claim for adjudication on the division of inherited property against Nonparty 1’s other co-inheritors, including the Plaintiff (Seoul Family Court 2013Dhap30053). Nonparty 2 transferred 6/25 of his/her share of inherited property to the Defendant on or around May 201, the day before the request for adjudication was filed, and Nonparty 4 transferred 4/25 of his/her share of inherited property to the Defendant free of charge on or around February 2014 (hereinafter “transfer of Nonparty 2’s share of inherited property”).

D. On April 3, 2014, the lower court determined that the Defendant’s final portion of inheritance was 16/25 (i.e., the Defendant’s original portion of inheritance 6/25 + Nonparty 2’s portion of inheritance 6/25 + Nonparty 4/25). The instant apartment was owned by the Plaintiff and the Plaintiff rendered an adjudication on the division of inherited property that the Plaintiff would pay the settlement amount to other co-inheritors. The Plaintiff’s appeal against the judgment on the division of inherited property was dismissed on November 4, 2014 (Seoul High Court 2014B212), and the reappeal by the Plaintiff et al. was dismissed on February 3, 2015 (Supreme Court 2014SS419), and the adjudication on the division of inherited property became final and conclusive as is (see Supreme Court).

2. Return of legal reserve of inheritance:

A. The land of the voice group in this case

The court below rejected the Plaintiff’s assertion that the Plaintiff trusted the instant voice group’s land in title to Nonparty 2, on the ground that the Plaintiff was donated by Nonparty 2, the decedent, and thus, the land was included in the basic property for calculating legal reserve of inheritance due to Nonparty 2’s death.

Examining the record in accordance with the relevant legal doctrine, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

B. Transfer of share of inheritance of this case

(1) Article 108 of the Civil Act applicable mutatis mutandis pursuant to Article 1118 of the Civil Act to the legal reserve of inheritance can be deemed as a gift under Article 1008 of the Civil Act to be applied mutatis mutandis to the legal reserve of inheritance. As to “the share of inheritance by a special beneficiary”, “if there is a person among co-inheritors who received a gift or testamentary gift from an inheritee, and the gift does not reach his/her own share of inheritance, the gift shall have the share of inheritance to the extent of the shortage in the portion.” As such, Article 1114 of the Civil Act does not apply to co-inheritors who received special benefits under Article 1008 of the Civil Act to the donation of property from an inheritee prior to the birth of the inheritee, regardless of whether the donation was made one year prior to the commencement of inheritance, or whether both parties knew that the person entitled to legal reserve of inheritance would inflict damage on the person entitled to legal reserve of inheritance, the property that received the donation shall be included in the basic property for calculating legal reserve of inheritance (see, e.g., Supreme Court Decision 95Da178585, Feb.

A share of inheritance refers to a comprehensive share of inheritance held by co-inheritors with respect to all of the inherited property, including active and passive property, prior to the division of inherited property (see Supreme Court Decision 2006Da2179, Mar. 24, 2006). The transfer of one’s share of inheritance without compensation to another co-inheritors constitutes a gift under Article 1008 of the Civil Act with respect to legal reserve of inheritance, barring any special circumstance, and thus, the share of inheritance should be deemed to be included in basic property for the calculation of legal reserve of inheritance from the inheritance due to the death of the transferor. The reasons are as follows.

The purpose of the system of statutory reserve of inheritance is to protect the surviving family's right to live from the act of disposal of the inheritee's property as a legal reserve of inheritance and to ensure the contribution to the formation of an inheritor's inherited property and the expectation of inherited property (see, e.g., Constitutional Court Order 2007HunBa144, Apr. 29, 2010). Article 108 of the Civil Act applied mutatis mutandis pursuant to Article 11118 of the Civil Act is to treat the inheritance property as an advance payment of inherited property in order to ensure fairness among co-inheritors in cases where there is a special beneficiary who received a donation or testamentary gift from an inheritee among co-inheritors (see, e.g., Supreme Court Decision 95Da17885, Feb. 9, 196).

In light of the legislative purpose of the legal reserve system and the purport of Article 1008 of the Civil Act, determination of whether the act constitutes a gift included in the basic property for calculating the legal reserve should not be made to understand the legal nature of the act of disposing the property of the inheritee formally and abstractly, and it should be made depending on whether the act of disposing the property of the inheritee constitutes a gratuitous disposition that reduces the property of the inheritee from a practical point of

A co-inheritors who has taken over a share of inherited property from another co-inheritors may demand the transfer of property interest by agreement between the transferor and the transferee, with the aggregate share of inherited property owned by themselves and that the aggregate share of inherited property acquired are participating in the inherited property division procedure and the distribution of inherited property equivalent to the aggregate share of inherited property. Therefore, in light of the active property included in the share of inherited property and the value of small property, if property value exists

Even if the division of inherited property takes effect retroactively when the inheritance commences (the main text of Article 1015 of the Civil Act), there is no problem in interpreting it as above.

(2) Determination on the instant case

Examining the factual basis in light of the foregoing legal doctrine, the transfer of the instant share constitutes a special benefit under Article 1008 of the Civil Act, barring any special circumstance, and thus, the said share is included in basic property for calculating legal reserve in inheritance due to the death of Nonparty 2.

Nevertheless, the lower court determined that the instant portion of inheritance does not constitute a basic property for calculating the legal reserve of inheritance on the ground that the Defendant acquired the instant portion of inheritance and received the instant apartment directly from Nonparty 1, but did not receive the inheritance from Nonparty 2, the inheritee, and received the donation from Nonparty 1. In so doing, the lower court erred by misapprehending the legal doctrine on the transfer of the portion of inheritance, special profits, and basic property for calculating the legal reserve of inheritance, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Requests for return of unjust gains:

A. Claim for return of unjust enrichment related to the Plaintiff’s share of inheritance

The lower court believed that the Defendant had a right to receive fruits from the possession and use of the apartment of this case, and that there was a justifiable ground to believe that there was such a right.

Examining the record in accordance with the relevant legal doctrine, the lower judgment did not err by misapprehending the legal doctrine regarding the right to receive negligence from the bona fide occupant, or by failing to exhaust all necessary deliberations, etc., contrary to what is alleged in the grounds of appeal.

B. Claim for restitution of unjust enrichment related to shortage in legal reserve of inheritance

The lower court rejected the Plaintiff’s claim on the ground that the instant inheritance transferred by Nonparty 2, the inheritee, to the Defendant, is not included in the basic property for calculating the legal reserve of inheritance. However, as seen earlier, the instant inheritance transferred by Nonparty 2 to the Defendant ought to be deemed to be included in the underlying property for calculating the legal reserve of inheritance in inheritance due to the death of Nonparty 2, and thus, the lower court’s judgment on a different premise cannot be maintained any longer. The allegation contained in the grounds of appeal on this point is with merit.

4. Conclusion

Of the judgment below, the part on the claim for restitution of unjust enrichment relating to shortage in legal reserve and the claim for restitution of unjust enrichment is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating