In case where a judgment on the division of inherited property ordering the auction of inherited property becomes final and conclusive, whether the change in real rights to inherited property takes effect according to the specific share of inherited property prescribed in the judgment on division of inherited property

Articles 269, 1013(1) and (2) of the Civil Act; Article 2(1) of the former Family Litigation Act (amended by Act No. 6626, Jan. 26, 2002)

Plaintiff (Law Firm LLC, Attorneys Park Gi-sung et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm, Kim & Lee LLC, Attorneys Ko Hyun-chul et al., Counsel for the defendant-appellant)

Defendant 1 and 3 others

Seoul High Court Decision 2008Na52125 decided December 24, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Except where the method of division of inherited property is determined by the inheritee’s will, the co-inheritors may divide the inherited property at any time by such agreement (Article 1013(1) of the Civil Act). If an agreement on the method of division of inherited property is not reached, the inheritor may request a court to divide it, and if it is impossible to divide it in kind or the value thereof is likely to be reduced remarkably due to such division, the court may order an auction of the property (Articles 1013(2) and 269 of the Civil Act). Meanwhile, Article 2(1) of the former Family Litigation Act (amended by Act No. 6626, Jan. 26, 2002) provides, “Disposition of inherited property pursuant to the provisions of Article 1013(2) of the Civil Act regarding the division of inherited property as a non-litigation case” and its deliberation and judgment were exclusive jurisdiction of the family court.

If a judgment on division of inherited property ordered an auction by a family court becomes final and conclusive, the parties to the judgment shall have the right to apply for an auction on inherited property and receive the proceeds from the auction, but it shall not be deemed that the change in the real right takes effect according to the specific shares of inheritance determined by the judgment on

2. According to the facts acknowledged by the court below, the non-party 1 died on August 26, 1985, and his heir was the plaintiff, the defendant joining the defendant, the non-party 2, and the non-party 3; the non-party 1 did not hold a division consultation on the inherited property among the inheritors after the non-party 1 died; the non-party 2 filed a claim for the adjudication on the division of inherited property against the plaintiff, the defendant joining the defendant, and the non-party 3. The court determined the specific share of inherited property of the plaintiff, the defendant joining the defendant as stated in the judgment of the court below regarding the real property of this case in the adjudication on the division of inherited property as of October 15, 1996, determined the specific share of inherited property of the non-party 2 and the non-party 3 to distribute the remaining amount after deducting the auction expenses from the proceeds of the auction (hereinafter "the adjudication of this case"); the adjudication of this case was finalized on March 21, 1997.

According to the aforementioned legal principles and factual relations, the party to the instant judgment is entitled to file an application for auction of the instant real estate upon the instant judgment and receive the proceeds from the auction, but it does not acquire the ownership of the instant real estate in accordance with the specific shares of inheritance prescribed in the instant judgment.

Nevertheless, the court below erred in holding that the court below may seek the cancellation of the share in the name of Nonparty 2 and 3 or the transfer of share as a claim for the removal of interference based on ownership on the premise that the change in real rights takes effect according to the specific shares of inheritance stipulated in the instant judgment, and that such errors affected the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Min Young-il (Presiding Justice)