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(영문) 서울고등법원 2018.09.05 2017나2044276
유류분반환
Text

1. Of the judgment of the first instance, the part against Plaintiff B and C is modified as follows. A.

The defendant shall be against the plaintiff B and C, 1.

Reasons

1. The reasoning for the court’s explanation on this part of the basic facts and the plaintiffs’ claims is as stated in the judgment of the court of first instance, in addition to the use of “Plaintiff D” and “Plaintiff E” as “D” and “E,” and therefore, it is identical to the corresponding part of the judgment of the court of first instance. Accordingly, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination

(a) The calculation method of shortage in legal reserve of inheritance shall be calculated by adding the value of the donated property at the time of the commencement of the inheritance by deducting the total amount of debts; and

(Article 113(1) of the Civil Act. The specific calculation method is as follows = [The amount of basic property (A) in calculating the legal reserve of inheritance x (B) with the person having the right to the legal reserve of inheritance - the amount of special profit (C) with the person having the right to the legal reserve of inheritance - the amount of net inheritance (D) with the person having the right to the legal reserve of inheritance - the amount of positive donated property - B with the amount of inherited property / 1/23 with the lineal descendant and spouse of the inheritee / the amount of inherited property with the legal reserve of inheritance = the amount of property acquired by the person having the right to the legal reserve of inheritance - the

B. According to Article 1114 of the Civil Act, the basic amount of property (A) in calculating the legal reserve of inheritance is generally limited to the donation to be included in the basic property in calculating the legal reserve of inheritance for one year prior to the commencement of the inheritance. However, when both parties knew that damage would be inflicted on the right holder of the legal reserve of inheritance, the donation made one year prior to the commencement of the inheritance is also included.

However, Article 108 of the Civil Act, which applies mutatis mutandis by Article 1118 of the Civil Act, provides that "in case where there is a person among co-inheritors who has received a gift or testamentary gift of the property from the inheritee, and the gift property does not reach his/her share of inheritance, there is a share of inheritance to the extent of the shortage of the property."

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