[1] Where a male who is not the head of a household dies before the current Civil Code enters into force, custom on inheritance of property

[2] In a case where the issue was whether a male who is not a family head Gap inherited the property of the head of South and North Korea at the time of death in 1942, the case holding that the court below erred by misapprehending the legal principles on the premise that a male who is a lineal descendant has the inheritance right only when he has the same family register as the deceased

[1] Where a male who is not the head of a household dies before the current Civil Code enters into force, the property is jointly inherited by the lineal descendant on an equal basis, and where a lineal descendant is a female who is not within the same family register as that of the inheritee, it was customary in Korea

[2] In a case where the issue was whether a male who is not a head of family succeeded to the property of the head of Dong at the time of death in 1942, the case holding that the judgment below erred in the misapprehension of legal principles on the ground that it is not sufficient to recognize that a male who is a lineal descendant has inherited the property of the Party A as a lineal descendant within the same family register as that of Party B at the time of the death of Party A, under the premise that Party A had the inheritance right

[1] Article 11 of the Decree on Civil and Civil Affairs of Joseon (Abolition), Article 1000 of the Civil Act / [2] Article 11 of the Decree on Civil and Civil Affairs of Joseon, Article 100 of the Civil Act

[1] Supreme Court en banc Decision 88Meu3619 delivered on February 27, 1990 (Gong1990, 753 delivered on February 22, 1991) 90Da15679 delivered on February 22, 199 (Gong191, 1053)

Plaintiff (Attorney Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Korea

Seoul Central District Court Decision 201Na40617 decided May 11, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Based on its adopted evidence, the court below acknowledged the following facts: (a) Nonparty 1, the father of the plaintiff, was the father of Nonparty 1 in 1896, who was the father of Nonparty 2, and the non-party 1 was within the family register whose father was the non-party 3 on February 15, 1923, and became the head of a household. (b) On the family register that the non-party 1 was the head of a family, the "fullju" was the official letter; (c) the contents of the non-party 2 were not reported at all on the above non-party 3 or the non-party 1's family register; and (d) the non-party 2 died around 1942; and (e) determined that such facts alone are insufficient to recognize that the non-party 1 inherited the non-party 2 to the head of a household

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of law such as violation of precedents or incomplete hearing as alleged in the grounds of appeal

2. Regarding ground of appeal No. 2

If a male who is not a family head dies before the enforcement of the current Civil Code, the property is jointly inherited by his lineal descendant equally, and if his lineal descendant is a female who is not in the same family register as the inheritee, the right to inheritance is not granted to him (see Supreme Court en banc Decision 69Da1324, Apr. 14, 1970; Supreme Court Decision 88Meu3619, Feb. 27, 1990; Supreme Court Decision 90Da15679, Feb. 22, 1991).

Nevertheless, the lower court rejected the Plaintiff’s claim on the premise that Nonparty 1, his father, succeeded to Nonparty 2’s property, on the premise that Nonparty 2, a lineal descendant, has an inheritance right only within the same family register as that of the inheritee, and at the time of his death in around 1942, Nonparty 1, a male non-party 2, who is the head of the household, also within the same family register as Nonparty 2. However, it is insufficient to recognize that Nonparty 1 inherited Nonparty 2’s property as a lineal descendant within the same family register as that of Nonparty 2. The lower court erred by misapprehending the legal doctrine on the custom on inheritance before the enforcement of the new Civil Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

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 Jo Hee-de (Presiding Justice)