Where all of the spouse and children of the deceased have renounced inheritance, the inheritor;

A person who renounces inheritance shall be placed in the same position as before and after the commencement of inheritance. Therefore, where all the spouse and children of the inheritee have renounced inheritance, the spouse and the grandchild or lineal ascendant of the inheritee shall jointly be the inheritor, and where there is no grandchild or lineal ascendant of the inheritee, the spouse shall be the inheritor alone.

Articles 1000, 1003, 1042, and 1043 of the Civil Act

[Plaintiff-Appellee] 2005Ma425 dated July 4, 2006 (Gong2006Ha, 1475)

Busan Resources Co., Ltd. (Law Firm Kang, Attorneys Kang Jong-won et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorneys Cho Young-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na75262 decided May 29, 2013

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

A person who renounces inheritance shall be placed in the same position as before and after the commencement of inheritance (see Supreme Court Order 2005Ma425, July 4, 2006, etc.). In cases where the whole of the spouse and children of the inheritee have renounced inheritance, the spouse and the grandchild or lineal ascendant of the inheritee shall be jointly the heir, and if there is no grandchild or lineal ascendant of the inheritee, the spouse shall be the sole heir.

According to the facts duly established by the lower court, the following facts are revealed: (a) the deceased non-party 1 died on August 6, 2010; (b) the deceased non-party 2 and the non-party 4, who is the spouse, as the bereaved family at the time of the death; (c) the non-party 3 and the non-party 4 reported the renunciation of inheritance on September 27, 2010 to the Suwon District Court Ansan Branch 2010-Ma107; and (d) the report was accepted on November 19, 2010; and (c) the non-party 3 was the children of the defendant 1, the non-party 2 and the non-party 4.

Examining these facts in light of the aforementioned legal principles, inasmuch as Nonparty 3 and Nonparty 4 renounced inheritance, the Defendants, the deceased Nonparty 1’s grandchildren, inherited the deceased Nonparty 1’s property jointly with Nonparty 2. Therefore, the lower court’s determination that the Defendants were the deceased Nonparty 1’s heir is justifiable, and did not err by misapprehending the legal doctrine on the renunciation of inheritance.

However, an inheritor may waive the inheritance within three months from the time of becoming aware of the commencement of the inheritance (Article 1019(1) of the Civil Act), and the time when the inheritor becomes aware of the commencement of inheritance refers to the day he/she knew of the occurrence of the cause of the commencement of inheritance and thereby becomes his/her inheritor (see Supreme Court Order 86S10, Apr. 22, 1986). However, in a case where there are special circumstances where it is difficult to know the cause of the commencement of inheritance immediately because he/she is legally difficult in the process of determining who is a final heir, the fact that he/she becomes his/her heir should be known even if he/she became the heir should be known. If a spouse and a child of the inheritee have renounced the inheritance, the spouse and a grandchild of the inheritee jointly become the heir of the inheritee is not a 2000 persons' priority of inheritance, and Article 1003 of the Civil Act on the effect of the renunciation of inheritance, Article 1042 of the Civil Act on the effect of the renunciation of inheritance is a 2020 person's child.

In this case, inasmuch as the Defendants were the deceased Nonparty 1’s grandchildren and the heir through the above process, it is reasonable to view that Nonparty 3 and Nonparty 4, who are the person in parental authority of the Defendants, did not know of the facts leading to the commencement of inheritance with respect to the Defendants, such as their renunciation of inheritance. Furthermore, in light of the empirical rule to deem that: (a) the person wishing to be exempted from inheritance by the waiver of inheritance would not neglect his/her obligation despite being aware that his/her obligation would be inherited to his/her children; and (b) in fact, Nonparty 3 and Nonparty 4, who is the person in parental authority of the Defendants, did not know of the fact that the Defendants would have succeeded to the appeal and appeal in this case; (c) there is sufficient room to recognize that the Defendants did not know of the fact that they would have succeeded to; (d) in such case, the period prescribed in Article 1019(1) of the Civil Act has not yet been determined against the Defendants; (e) however, the Defendants’ claim against the Defendants should not be dismissed, separately from the following grounds for the Defendants’ waiver of inheritance.

Therefore, 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 Park Poe-young (Presiding Justice)