In general real estate donation not falling under Article 187 of the Civil Act, in case where a donor died before the registration of ownership transfer, whether such real estate falls under the inherited property (affirmative)

Under our legal system that takes the form principle as to the change in real rights due to a juristic act, the date of acquisition of real estate is the time of the registration of transfer of ownership due to the donation, and the date of acquisition in writing is the date of acquisition in the case of a written document, even if the donee uses and benefits from the donation even if the donee uses and benefits from the transfer of real estate, so if the donor who was the owner dies, such real estate belongs to inherited property.

Articles 186 and 187 of the Civil Act; Article 21(1)3 of the Framework Act on National Taxes; Articles 4(1), 18, and 29-2(1) of the Inheritance Tax Act

Supreme Court Decision 90Nu134 delivered on July 13, 1990 (Gong1741 delivered on January 25, 1991) 90Nu6477 delivered on January 25, 1991 (Gong1991,86) 91Nu1493 delivered on June 11, 1991 (Gong191, 1953)

Plaintiff 1 and two others

Daejeon Head of the tax office

Seoul High Court Decision 90Nu16018 delivered on February 19, 1992

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The plaintiffs' grounds of appeal

In full view of the contents of Article 21(1)3 of the Framework Act on National Taxes, Articles 4(1), 18, and 29-2(1) of the Inheritance Tax Act, the acquisition date of the real estate is the time of the registration of transfer of ownership due to the donation, in general real estate donation which is not a donation using the case of Article 187 of the Civil Act, under the legal system that takes the form principle as to any change in real rights due to legal act. Although the donation is in writing or the acquisition date is used or profit-making from the gift, it cannot be deemed that the real estate is still acquired unless the registration of transfer of ownership is completed, so it is reasonable to deem that the real estate belongs to the inherited property if the donor who was the owner of the land dies (see, e.g., Supreme Court Decisions 87Nu403, Oct. 28, 1987; 90Nu134, Jul. 13, 190; 90Nu67, Jan. 25, 1991).

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 Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho