[1] Where a person who asserts a true heir and a person who asserts a true heir are different persons, whether the person can be considered as a lawsuit claiming recovery of inheritance (negative)

[2] The case holding that a claim for cancellation of registration of ownership transfer does not constitute a lawsuit for recovery of inheritance, against a person who has completed registration of inheritance under the Act on Special Measures for the Registration, etc. of Ownership Transfer on the ground that he/she was inherited by another decedent

[1] A lawsuit for recovery of inheritance is based on the premise that the deceased is the same person as the deceased who asserts that the deceased is the same person, so if the deceased who asserts the deceased and the deceased is another person who asserts his/her title, the lawsuit shall not be deemed as a lawsuit for recovery of inheritance even though it is based on the premise that the cause of the claimant's

[2] The case holding that a claim for cancellation of registration of transfer of ownership of the pertinent real estate filed by a true heir does not constitute a claim for recovery of inheritance, on the ground that, where the registration of inheritance under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate was completed in the name of a true heir, although the registration of inheritance was completed in the name of a true heir with respect to the real estate in the name of a true heir, it cannot be viewed as the registration that the heir inherited the real estate from the true heir, because the title heir cannot be seen as the title heir with respect to the pertinent real estate

[1] Article 999 of the Civil Act / [2] Article 999 of the Civil Act, Article 7 of the Act on Special Measures for the Transfer of Real Estate Ownership

[1] Supreme Court Decision 94Da798 delivered on April 15, 1994 (Gong1994Sang, 1445), Supreme Court Decision 93Da5840 delivered on April 14, 1995 (Gong1995Sang, 1841), Supreme Court Decision 95Da945 delivered on July 11, 1995 (Gong195Ha, 2758)

Plaintiff 1 and two others (Attorneys Cho Jae-sik et al., Counsel for the plaintiff-appellant)

Defendant 1 and nine others

Daejeon High Court Decision 97Na3628 delivered on October 28, 1997

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

We examine the Plaintiffs’ grounds of appeal.

According to the reasoning of the judgment of the court of first instance cited by the court below, since one third of the shares in each of the real estate in this case were originally owned by the deceased non-party 1, the above non-party 1 died on August 15, 194 and jointly succeeded by the plaintiffs who are his father, and the non-party 2, who is the plaintiff's own village, obtained a false guarantee document and a written confirmation as if he succeeded to each of the shares in this case from Non-party 1 on November 1, 1973, and received a false confirmation from Non-party 1 on May 24, 1995 to May 9, 1995, the court below acknowledged that the period was 9 years after the commencement of the registration of ownership transfer from the deceased non-party 1's own name and completed the registration of ownership transfer from the deceased non-party 2's heir's right to inheritance in this case's order after the expiration of the inheritance recovery period from the deceased non-party 2's right to inheritance in this case's order.

However, since a lawsuit for recovery of inheritance is based on the premise that the above heir is the same person as the above heir's assertion, even if the heir's assertion is based on the premise that the heir's claim was acquired by inheritance (see, e.g., Supreme Court Decisions 93Da5840, Apr. 14, 1995; 95Da945, Jul. 11, 1995). In this case, the plaintiffs did not seek cancellation of the registration in the name of the above heir's title transfer registration in the above real estate under the name of the above heir's title transfer registration in the name of the above heir's claim, and thus, it cannot be viewed as a lawsuit for recovery of inheritance under the name of the above heir's assertion. Since the above heir's assertion is merely a different person from the above heir's assertion, it cannot be viewed as a lawsuit for recovery of inheritance's ownership registration in the name of the above heir's claim and its actual title transfer registration in the name of the above heir's list or its actual title transfer registration.

Nevertheless, the court below erred by misapprehending the facts and determined that the limitation period has expired by deeming the lawsuit of this case against the Defendants as a lawsuit claiming inheritance recovery under the premise that Nonparty 2 is a nominal inheritor. The court below erred by misapprehending the legal principles as to the lawsuit claiming inheritance recovery, which affected the conclusion of the judgment, and thus, the argument on this point has merit (in addition, according to the records of No. 14-14 through No. 19 (each certified copy of the register) of the judgment, among the real estate in this case, the ownership transfer registration for two-thirds of each real estate, which is one of the deceased Nonparty 4 and No. 5, was made with respect to the real estate in this case, which is one of the shares of the deceased Nonparty 5, and then the registration under the name of the Defendants was made. Accordingly, the court below shall point out that the plaintiffs, who are not the deceased Nonparty 4 and No. 5, should be subject to the grounds for seeking the cancellation of the real estate in the above 13-18 or 10-10 days).

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)