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(영문) 서울고등법원 2018.09.07 2018나2005889
유류분반환청구
Text

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning for the court’s explanation as to this case is as follows: (a) under the 5th of the judgment of the first instance, “1.926 square meters” in the 4th sentence, “P” in the 3th sentence shall be deemed as “1,926 square meters”, and “P” in the 3th sentence shall be deemed as “ Q”; and (b) except for the addition of the following judgment as to the grounds for appeal that the Plaintiff has repeatedly emphasized or newly added to the first instance judgment, it shall be deemed as the same in the judgment of the first instance; and (c) thus, it shall be cited

2. Determination on the grounds for appeal

A. The Plaintiff asserts that the general principles of private international law of the United States and the relevant provisions of the New York law of the United States are the laws of the country where the real estate is located, on the claim for inheritance, the law of this case is the law of the country where the real estate is located. Thus, the governing law of this case is the civil law of the Republic of Korea in accordance with Article 9(1) of the Private International Law of the Republic of Korea concerning anti-states.

However, the above provision is about the disposal of the real estate by will, and there is no room to apply in this case that the deceased donated the real estate before its birth.

B. The plaintiff asserts that since the legal reserve of inheritance under the Civil Code of the Republic of Korea is a mandatory provision with the purpose of protecting the bereaved family's right to live, even if a foreign law is designated as a governing law, it should be applied pursuant to Article 7 of the Private International Act, and in this case, the New York law that does not recognize the legal reserve of inheritance would result in a clear violation of the public order and good morals of the Republic of Korea, so the New York law shall not be applied pursuant to

However, in light of the fact that the legal reserve of inheritance is a property right that can be waived, it cannot be deemed that the legal reserve of inheritance system of Korea should be applied regardless of the applicable law, and if the law of nationality of the inheritee does not recognize the legal reserve of inheritance, its application violates the public order and good morals of the Republic of Korea.

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