(영문) 대구고등법원 2015.4.22.선고 2014나2007 판결

3. 26. The registration of transfer of ownership and each cancellation registration procedure completed by the recipient No. 9820 will be implemented.

2. Purport of appeal

The order is as set forth in the text.

Reasons

1. Basic facts

A. On March 29, 2012, the deceased et al. (hereinafter referred to as "the deceased") and his heir, both the plaintiffs and the defendant have resided in Japan with the nationality of the Republic of Korea. The deceased died on March 29, 2012. The property of the deceased was in both the Republic of Korea and Japan, and the deceased was the heir of the deceased, and there was the plaintiff C and the defendant, the wife of the deceased, the plaintiff B, the South and North, the plaintiff C, and the South and North.

B. On June 5, 2012, Plaintiff C reported the renunciation of inheritance with respect to the deceased’s property to the ASEAN Family Court, and Plaintiff A and B received an extension of the inheritance filing period from the same court on August 31, 2012 within three months from the date on which the commencement of inheritance was known, and reported the renunciation of inheritance to the same court on August 27, 2012, the extension period. Each of the above renunciation of inheritance was accepted on both August 2012 and September 13, 2012 (hereinafter referred to as “each renunciation of inheritance”).

C. After that, the Defendant completed the registration of transfer of ownership by inheritance under the receipt of No. 9820 on March 26, 2013 by the Daegu District Court No. 4182, Feb. 5, 2013 with respect to each real estate listed in the separate sheet No. 1 and No. 2 in the separate sheet (hereinafter referred to as “each real estate of this case”) listed in the separate sheet No. 1 and No. 2 in the separate sheet owned by the Deceased, as to each real estate listed in the separate sheet No. 3 through No. 6 in the separate sheet (No. 6).

D. On July 2, 2013, Plaintiff C applied for the revocation of each of the instant renunciation of inheritance to the Japanese Family Court on August 6, 2013, and on August 6, 2013, Plaintiff C filed an application for the revocation of each of the instant renunciation of inheritance with the ASEAN Family Court. Each of the above applications for revocation of each of the said renunciation of inheritance was accepted on October 4, 2013 (Evidence A 8 through 16).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 16 (including each number; hereinafter the same shall apply), Eul evidence 1, 4 through 9, and the purport of the whole pleadings

2. The parties' assertion

A. The waiver of succession of each of the instant real estates reported to the Japanese Court on the following grounds. Thus, the Plaintiffs still become the inheritors of the deceased on each of the instant real estates.

In other words, there is no room for the application of the Private International Act to the inheritance relationship with respect to the deceased’s domestic property since there is no foreign element. ② Even if not, pursuant to Article 49 of the Private International Act, the applicable law to inheritance is the law of the deceased’s home country at the time of death. ③ Although Article 17(2) of the Private International Act provides that the method of a juristic act is valid pursuant to the law of the place of act. However, Article 17(5) of the same Act excludes the application of paragraph (2) with respect to the method of establishing or disposing of real rights or other rights to be registered, each of the instant real estate. Thus, each of the instant renunciation of inheritance is invalid. (4) Even if each of the instant renunciation of inheritance is valid by domestic law, the actual requirements for establishment shall be complied with. (3) In the case of the Plaintiff A and B, even if the period of refusal of inheritance was extended by the domestic court, each of the instant inheritance is over three months with respect to the period of refusal of inheritance as stipulated in Article 1019 of the Civil Act.

3) Even if each renunciation of inheritance in this case is assumed valid, the above plaintiffs A and B were revoked on the grounds of mistake and deception by the defendant, and thus the above plaintiffs still maintain the status of the heir. In other words, as compared to the defendant's obligation in Japan in Japan to the extent that there is no particular value that each of the real estate in this case is domestically located, and thus, the waiver of inheritance shall be made, but each of the real estate in this case shall be divided according to the statutory share of inheritance, and the right to deceiving the plaintiffs, the plaintiffs shall be forced to waive their respective renunciation of inheritance in this case due to mistake.

4) Accordingly, the defendant as to the part of the plaintiffs' shares in inheritance among each of the instant real estate

Since the registration of transfer of ownership in the name is null and void, the defendant is obligated to cancel it to the plaintiffs.

B. Defendant: (a) the waiver of each of the instant registrations is effective pursuant to Article 17(2) of the Private International Act and there is no reason to revoke it; (b) the Defendant solely inherited the deceased’s property. Therefore, the ownership transfer registration in the name of the Defendant on each of the instant real estate is valid; and (c) the Defendant is not obligated to

3. Judgment on the plaintiff's assertion

A. Whether each renunciation of inheritance in this case is null and void

1) As seen earlier, both the deceased and their inheritors have resided in Japan with the nationality of the Republic of Korea, and the inherited property of the deceased exist both in Korea and Japan. Accordingly, the inheritance relationship of the deceased constitutes “legal relations with foreign elements” under Article 1 of the Private International Act, and thus, the governing law should be determined under the Private International Act.

The governing law on inheritance under the Private International Act is a principle of "the law of nationality of the inheritee at the time of the death (Article 49 of the Private International Act), but the method of a juristic act is also valid (Article 17 (2) of the Private International Act). The waiver of inheritance is related to the succession of comprehensive rights and obligations related to the right to identity, and it does not constitute "the law of the place of action" under Article 17 (5) of the Private International Act, which excludes the application of the law of the place of action, or "the legal act that determines or disposes

Therefore, barring any special circumstance, the waiver of inheritance of this case, which the plaintiffs reported to the Japanese Court pursuant to the law of the place of action, shall be valid. Thus, the plaintiff's above 2. A. 1), 1, 2, and 3 cannot be accepted.

2) As to this, Plaintiff A, B asserted that each of the instant renunciations of inheritance did not have the effect because it did not meet the actual requirements for establishment, even though the period of renunciation of inheritance was not extended by the domestic court.

On the other hand, Article 1019(1) of the Civil Act provides that "a person may waive inheritance within three months from the date when he/she becomes aware of the commencement of inheritance, but the period may be extended at the request of interested parties, etc., by the family court." Article 915(1) of the Civil Act also provides that "the period shall be extended." Therefore, where the period of renunciation of inheritance is not extended by the court, an inheritor may waive inheritance within three months as provided by Article 1019(1) of the Civil Act, and where the period of renunciation is extended by the court, each extension thereof may be made within such three months. In such cases, in the inheritance relationship subject to the Private International Act, whether a decision to extend the period of renunciation of inheritance shall be made by the domestic family court, whether a decision to extend the period of renunciation of inheritance shall be received from a foreign family court, and whether it shall be received from a

Within three months from the day on which the above plaintiffs were aware of the commencement of inheritance, in accordance with the Japanese Civil Code, the Japanese Family Court has received an extension of the period of the declaration of renunciation of inheritance from the Japanese Family Court, and filed a report of renunciation of inheritance within the extended period, and all the reports of renunciation of inheritance have been accepted.

Therefore, since each renunciation of inheritance in this case is all valid, the above plaintiffs 2.

A. 1) (4) The argument on the part cannot be accepted.

(b) Whether a consultation on division of inherited property has been reached;

Since the plaintiffs asserted that prior to the waiver of inheritance of this case, they divided the inherited property by agreement with the defendant as to each of the real estate of this case, each of the items of evidence Nos. 18, 19, and 20 as shown above is merely a unilateral statement of the plaintiffs, and it is difficult to believe it as it is. The evidence submitted by the plaintiffs alone is insufficient to recognize it, and there is no other evidence to acknowledge it. Thus, the plaintiffs' assertion on this part cannot be accepted.

C. Whether each renunciation of inheritance in this case has been revoked

The plaintiff A and B asserted that the waiver of succession of this case was revoked by mistake or deception of the defendant. However, with regard to the fact that the waiver of succession of this case was made by mistake or deception of the above plaintiffs, each of the items of evidence Nos. 18, 19, and 20 as stated above is merely a unilateral statement of the plaintiffs, and it is difficult to believe it as it is. The evidence submitted by the plaintiffs alone is insufficient to recognize it. Since there is no other evidence to acknowledge it, the above plaintiffs' assertion on this part on this premise cannot be accepted without need to further examine it.

4. Conclusion

Therefore, all of the plaintiffs' claims in this case are dismissed as it is without merit. Since the judgment of the court of first instance which has different conclusions is unfair, the defendant's appeal is accepted, and the plaintiffs' claims are revoked and all of them are dismissed. It is so decided as per Disposition.