[1] Whether Article 105 of the Civil Act, which provides that an heir succeeds to the rights and obligations of the inheritee immediately upon commencement of inheritance, infringes on the property rights guaranteed by the Constitution (negative), and whether the above provision infringes on the right to equality of an heir (negative)

[2] The meaning of "the commencement date of inheritance" under Article 1019 (1) of the Civil Code as the starting date of the period of consideration for renunciation of inheritance, and the case where it can be seen that the inheritor was aware of the fact that he/she became the inheritor due to the knowledge of the cause of the commencement of inheritance

[3] The case holding that in case where the wife and children of the inheritee who are the senior inheritor have renounced inheritance and become the inheritor in the next order of inheritance, there are special circumstances where it is difficult for the inheritor to know the facts he/she became the inheritor due to the mere knowledge of the cause of the commencement of inheritance

[1] Upon commencement of inheritance, the Civil Act provides that the heir succeeds to the comprehensive rights and obligations of the inheritee’s property (Article 1005 of the Civil Act). This is aimed at promoting legal stability by promptly establishing legal relations arising from inheritance. On the other hand, since the above provision provides an inheritor with the freedom to vest or refuse the effect of inheritance according to his/her will, it cannot be deemed that it violates the Constitution by infringing on the property rights guaranteed by the Constitution, and furthermore, since the above provision equally applies when the heir succeeds to the inheritance, no heir may be deemed to infringe on the right to equality of the heir on the ground that the heir succeeds to the positive property while the heir succeeds to the passive property.

[2] An inheritor may waive the inheritance within three months from the time when he became aware of the commencement of the inheritance (Article 1019(1) of the Civil Act). The "date when he becomes aware of the commencement of the inheritance" refers to the date when he becomes aware of the occurrence of the cause of the commencement of the inheritance and thereby becomes his inheritor. However, in the case of ordinary inheritance where inheritance is commenced due to the death of the inheritee and there is no difficulty in recognizing the priority or qualification of inheritance, it is reasonable to view that the inheritor was aware of the fact that he became his inheritor by the awareness of the cause of the commencement of the inheritance. However, since there are some special circumstances where it is difficult to know the fact that he became his inheritor immediately because it is difficult to know of the fact that he became the inheritor because of the fact of the commencement of the inheritance, it is difficult to find out the fact of the commencement of the inheritance." In such a case, the court should determine the "date when he became aware of the commencement of the inheritance" as well as the date when he became his inheritor was aware of the fact.

[3] The case holding that, in case where both the wife and children of the inheritee legally renounces their inheritance, the deceased's wife and children become the inheritor in the next inheritance order, such as the grandchildren of the inheritee, but this legal principle is derived only from the comprehensive interpretation of the provisions of Articles 1000 (1) 1 (a) of the Civil Code concerning the priority of inheritance including the lineal descendants of the inheritee as well as the grandchildren of the inheritee) and Articles 1042 through 1044 of the Civil Code concerning the effect of the renunciation of inheritance, and there is no express provision on this, it is rather a general public's view that the deceased's wife and children have become their inheritor if they renounced their inheritance from the standpoint of the deceased's wife and children, and therefore, it is difficult to find out the facts that the inheritor became their inheritor merely because of the fact that the inheritor became the inheritor, in case where the deceased becomes the inheritor by the process of inheritance.

[1] Article 105 of the Civil Act, Articles 11(1) and 23 of the Constitution / [2] Article 1019(1) of the Civil Act / [3] Articles 100(1)1 and (2), 1019(1), 1042, 1043, and 1044 of the Civil Act

[1] Constitutional Court en banc Order 2003Hun-Ga13 decided Oct. 28, 2004 (Hun-Ga98, 1134) / [2] Supreme Court Order 69Da232 decided Apr. 22, 1969 (No. 17-2, 54) 84S17-25 decided Aug. 23, 1984 (Gong1984, 1723), Supreme Court Order 86S10 decided Apr. 22, 1986 (Gong1986, 872) (Gong1988, 198, 198), Supreme Court Order 88SDo10, 112, 13 (Gong1988, 1240) decided Jun. 1, 191 (Gong1951, 195)

Korea Technology Finance Corporation

Defendant 1 and nine others (Attorney Seo-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na7083 delivered on July 9, 2003

The judgment below is reversed, and the case is remanded to Seoul High Court.

1. As to whether Article 1005 of the Civil Act violates the Constitution

When inheritance begins, the Civil Act provides that an inheritor succeeds to the comprehensive rights and obligations of the inheritee’s property (Article 1005 of the Civil Act). This is aimed at promoting legal stability by promptly establishing legal relations arising from inheritance. On the other hand, since the above provision provides an inheritor with the freedom to vest or refuse the effect of inheritance according to his/her will through the waiver and limited approval system, etc. of inheritance, it cannot be deemed that the above provision violates the Constitution by infringing on the property rights guaranteed under the Constitution. Furthermore, since the above provision equally applies when a person succeeds to an inheritance, no inheritor is deemed to have infringed the right to equality of an inheritor (see Constitutional Court Order 2003Hun-Ga13, Oct. 28, 2004).

The ground of appeal on this part is without merit.

2. As to the interpretation on the day when the commencement of inheritance became known

A. The measure of the court below

According to the reasoning of the judgment of the court of first instance (including the reasons for the judgment of the court of first instance cited by the court of first instance), the court below rejected the Defendants' legal representative's report on the inheritance as the deceased non-party 1 (hereinafter referred to as "the deceased non-party 2 and non-party 4") on January 4, 1997 when all the deceased non-party 2 (hereinafter referred to as "the deceased non-party 2 and non-party 4") who was liable for the reimbursement liability against the plaintiff died on January 4, 1997, and reported the renunciation within a lawful period of time, and the report was accepted on February 21, 1997. Accordingly, the court below rejected the Defendants' legal representative's report on the inheritance as the deceased's non-party 1 and non-party 2, who had been the deceased's heir's heir's heir's heir's heir's heir's heir's non-party 1 and the above plaintiff's heir's heir's heir's non-party 2 and the above non-party 1 and the above.

B. Judgment of the Supreme Court

(1) An inheritor may waive the inheritance within three months from the date when he became aware of the commencement of the inheritance (Article 1019(1) of the Civil Act). The "date when he becomes aware of the commencement of the inheritance" refers to the date when he becomes aware of the occurrence of the cause for the commencement of the inheritance and thereby becomes his inheritor (Supreme Court Decision 69Da232 delivered on April 22, 1969). In ordinary cases of inheritance where inheritance commenced due to the death of the inheritee and there is no particular difficulty in recognizing the order of inheritance or the qualification, it is reasonable to view that the inheritor was aware of the fact that he became his inheritor through the knowledge of the cause for the commencement of the inheritance (see Supreme Court Order 84S17-24 delivered on August 23, 1984, Supreme Court Order 86S10 Delivered on April 22, 198, Supreme Court Order 86S 10 delivered on August 25, 1988, etc.).

(2) Where both the wife and children of the inheritee legally renounces their inheritance, priority succession is derived by comprehensively interpreting the provisions of Articles 1042 through 1044 of the Civil Act as to the effect of the renunciation of inheritance, the deceased’s wife and children shall be the inheritor (see Supreme Court Decisions 94Da11835 delivered on April 7, 1995, 95, 95Da2769 delivered on September 26, 1995, etc.). However, this legal principle is reasonable to view that it is difficult for the Defendants to understand that the deceased’s wife and children became the inheritor by comprehensively interpreting all the provisions of Articles 100(1)1(1) of the Civil Act as to the effect of the renunciation of inheritance.

(3) Meanwhile, according to the records, the Plaintiff’s waiver of inheritance by Nonparty 2 and 4 was well-grounded to prevent the deceased from being inherited with the knowledge of excessive debts. However, as seen earlier, his heir’s refusal of inheritance may inherit his debts. Thus, in order to ultimately achieve the purpose of preventing inheritance, the Defendants, who are their children, should report the renunciation of inheritance in their name, but did not take any measures. In the claim for indemnity of this case filed by the Plaintiff against Nonparty 2 and 4, the Plaintiff did not know that the Plaintiff’s refusal of inheritance had been made on October 4, 2002 by Nonparty 2 and other 4, and the Defendants did not report the refusal of inheritance to the Defendants’ legal representative’s refusal or correction of the facts in the first instance court and the first instance court’s first instance court’s first and the first instance court’s first instance court’s first instance court’s rejection of inheritance, and the Defendants’ legal representative, who did not know the inheritance’s refusal of inheritance, did not know the above legal representative’s refusal of inheritance.

Therefore, the court below should have determined the date on which the defendants became the inheritor and determined whether it was legitimate to file a report of renunciation of inheritance on November 7, 2002 after examining the above point of view. However, the court below denied the validity of renunciation of inheritance on the ground that the above report was made three months after the preceding report became effective by the heir. In so doing, the court below erred by misapprehending the legal principles on the interpretation of the date on which the succession was known, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The Defendants’ ground of appeal on this issue is with merit.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)