Plaintiff (Law Firm Han-chul, Attorneys Jeon Byung-sik et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

May 17, 2006

Seoul Western District Court Decision 2004Ka63531 Decided November 15, 2005

1. The Plaintiff’s appeal against the Defendants and the Defendants’ appeal are all dismissed.

2. Costs of appeal shall be borne by each person.

1. Purport of claim

As to each of the real estates listed in the separate sheet (hereinafter referred to as each of the real estates in this case), Defendant 1 will implement the procedure for registration of cancellation of the establishment of a neighboring mortgage completed under Article 27418 of the Act on September 7, 2004 with respect to each of the real estates listed in the separate sheet (hereinafter referred to as "each of the real estates in this case"), which was completed on September 7, 2004 with respect to each of the real estates in this case by the Busan Western District Court's registry office received on September 2695, 204; and Defendant 2 will implement the procedure for registration of cancellation of the establishment of a neighboring mortgage completed under Article 2741

2. Purport of appeal

A. The plaintiff shall revoke the part against the plaintiff in the judgment of the court of first instance. (1) The defendant 1 will implement the procedure for the cancellation of the registration of the establishment of a mortgage on September 7, 2004, which was completed on September 7, 2004 with respect to the one-eight share of each of the real estate of this case as to the one-eight share among the real estate of this case, as to the registration of the transfer of a share completed on September 13, 2004 with respect to the one-eight share of each of the real estate of this case as to the provisional registration of the right to claim a transfer of shares completed on September 27417 of the same day by the registry office as the provisional registration of the right to claim a transfer

B. Defendants: The part of the judgment of the court of first instance against the Defendants shall be revoked, and the Plaintiff’s claim against the Defendants corresponding to that part shall be dismissed.

1. Facts of recognition;

In full view of the statements in Gap evidence 1-1 to 13-2 and non-party 3's testimony of the court of first instance, the following facts can be acknowledged. The statements in Eul evidence 1 and the testimony of non-party 4 of the court of first instance are hard to reverse them, and no other counter-proof evidence exists.

(a) Preparation, etc. of written wills;

(1) Defendant 1 and Nonparty 2 are Nonparty 1’s children, and the Plaintiff is Defendant 1’s children, and Defendant 1 was Defendant 1’s Marocco in the early 1970s and was living abroad as a her grandchildren, and Nonparty 1 was raising the Plaintiff as his grandchildren. Nonparty 2, together with his family, was living together with Nonparty 1’s house located in Yongsan-gu Seoul Metropolitan Government (detailed address omitted) from around 1988.

(2) On May 10, 1914, Nonparty 1 prepared a note to the effect that “each of the instant real estate shall be inherited to the Plaintiff and Nonparty 2, who was his own possession of the instant real estate on November 10, 2003,” (the note contains only the instant 1,2, and the instant 4 real estate is omitted. However, the instant 4 real estate was divided into the instant 1 real estate on December 27, 1989. In light of the size of the instant 1 real estate as indicated in the above note and the indication of Nonparty 1’s share, Nonparty 1’s possession of the said note, upon preparing the above note, entered the registration certificate before dividing the instant real estate from the date of the instant 1 to November 10, 2003 into the registry and entered it in the registry by mistake, and thus, Nonparty 2 had Nonparty 1 and Nonparty 1 deliver the entire title of the instant real estate to Nonparty 2, who had the Plaintiff and Nonparty 1’s domicile.

(3) Although Nonparty 1 was satisfyed by satisfying the ability, even before Nonparty 1’s preparation of the above satisfy, it did not have a big problem, and was engaged in daily life, such as meals and urines, and died on April 16, 2004.

(4) On March 20, 2004, Nonparty 1 (hereinafter “the Deceased”) made a will by gathering families, including the Plaintiff, Nonparty 2, Nonparty 5, and Nonparty 3, prior to the death, and made a will to divide each of the instant real estate into the Plaintiff and Nonparty 2.

(b) Approval seal of the will;

On April 24, 2004, the non-party 2 delivered a copy of the above remains to Defendant 1, and on May 18, 2004, the Seoul Family Court (Case Number omitted) requested the approval seal on the instant remains. Accordingly, the non-party 2, the plaintiff, and the defendant 1 participated in the open approval procedure on June 30, 2004, and the written confirmation of the will is written in the written confirmation of the will.

(c) Property relationship and inheritance registration of the deceased;

(1) The Deceased did not have any obligation at the time of his death, and each of the instant real property was the entire property of the Deceased.

(2) However, the share transfer registration was completed on September 7, 2004 by Defendant 1, Nonparty 2, each of the shares of each of the instant real estate on the ground of inheritance, under the receipt of the Yongsan District Court's Yongsan District Court's receipt of the Yongsan District Office on September 7, 2004, and as to the shares of Defendant 1 among each of the instant real estate, Defendant 2 was the person holding the provisional registration or the right to collateral security on September 13, 2004, and the provisional registration of the right to claim share transfer was completed under Article 27417 of the receipt of the same registry office on September 13, 2004.

2. Determination:

A. Judgment on the plaintiff's claim

According to the facts established above, the written will of this case is prepared by the deceased's own writing, and it is a legitimate will according to the method stipulated in Article 1066 of the Civil Act. Therefore, ownership of each real estate of this case shall belong to the non-party 2 and the plaintiff, each of whom shall belong to 1/2 shares of each of the real estate of this case. Thus, unless there are special circumstances, the registration of transfer of the above shares completed in the future of defendant 1 with respect to the 1/2 shares of each of the real estate of this case shall be cancelled as a cause null and void, and each of the above provisional registration and the registration of establishment of a neighboring mortgage of the defendant 2, which are based on

B. Determination of the defendants' assertion

(1) Whether a will is null and void

The Defendants asserted that the report of this case was not made by the deceased but was null and void because it was not made by the deceased, in view of the fact that, at the time of the time when the deceased prepared the above report, it was 80 years of age with weak mental and physical disorder, and that the report of this case was made by the deceased's own pen, but it was made lawfully in accordance with the methods and requirements stipulated in Article 1066 of the Civil Act. However, as seen earlier, there is no evidence to deem that the report of this case was null and void other than the evidence mentioned above, and there is no reason to believe that the above assertion by the Defendants is invalid.

(2) Whether the legal reserve of inheritance complies with the substantive relationship

(A) The Defendants asserted that, within this limit, Defendant 1 may claim the return of legal reserve of inheritance with respect to the portion of one-fourths of each of the instant real estate, it is not null and void in accordance with the substantive relationship.

Defendant 1, who was unable to inherit as the inheritor due to the testamentary gift of this case, is the entire property of the deceased, who is the inheritee, and as the subject property of the testamentary gift of this case, he can seek a return in proportion to the testamentary gift value that he acquired by each of the plaintiff and Nonparty 2. Since the value of the testamentary gift against the plaintiff and Nonparty 2 is the same, the scope of Defendant 1 can claim a return of the legal reserve of inheritance against the plaintiff as to each of the real property of this case is 1/8 shares (the share of the plaintiff 1/2 x the above defendant 1/4). Accordingly, the part concerning the 1/8 shares among the registration of ownership transfer in Defendant 1's name on each of the real property of this case is valid as a registration consistent with the substantive relations. The aforementioned assertion by the defendants is reasonable.

(B) As to this, the Plaintiff asserts that, once Defendant 1 again exercised the right to claim the return of legal reserve of inheritance after the lapse of one year from April 19, 2004 or April 24, 2004, the above Defendant’s right to claim the return of legal reserve of inheritance expired by prescription.

On the other hand, Article 1117 of the Civil Act provides that the right to claim the recovery of legal reserve of inheritance shall expire unless the person entitled to legal reserve of inheritance becomes aware of the fact that the gift was to be returned within one year after the commencement of inheritance or the fact that the gift was to be returned. "When the person having the right to legal reserve of inheritance becomes aware of the fact that the gift was to be returned," it cannot be concluded that the person having the right to legal reserve of inheritance knows that the gift was null and void and that the gift was to be returned immediately after being aware of the fact that the gift was to be returned. However, in this case, the defendant 1 did not have the right to claim the recovery of legal reserve of inheritance of this case on April 24, 200, and it cannot be concluded that the defendant 1 had the right to claim the recovery of inheritance of this case under the name of the deceased's right to claim the recovery of inheritance of this case and the defendant 1 did not have the right to claim the recovery of inheritance of this case on the ground that the ownership of this case was null and void.

C. Sub-committee

Therefore, the registration of share transfer with respect to the remaining 3/8 shares, excluding the part relating to the 1/8 share of the above defendant, among the registration of share transfer with respect to each real estate in the name of defendant 1, should be cancelled as the cause becomes null and void. Thus, the plaintiff is obligated to perform the registration of share transfer with respect to each 3/8 share of the pertinent real estate, the defendant 1 is obligated to perform the registration of share transfer with respect to each 3/8 share of the instant real estate, and the registration procedure for cancellation of the registration of share transfer and the registration of cancellation

3. Conclusion

Therefore, the plaintiff's respective claims against the defendants of this case are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal against the defendants and the appeal by the defendants are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form Omission of Indication of Real Estate]

Judges Jeong Young-tae (Presiding Judge)