Claimant (Attorney Yoon Young-young et al., Counsel for defendant-appellant)

Other party 1 and one other (Attorney Yellow-chul, Counsel for the plaintiff-appellant)

Other 3 (Law Firm Tae, Attorneys Choi Ho-ho et al., Counsel for the plaintiff-appellant)

Seoul Family Court Decision 2012Ra208 dated November 5, 2013

1.The adjudication of the first instance shall be modified as follows:

Each inheritance claim listed in the attached Table 1 shall be divided into 3,462/10,00 shares, and the other party 3 shall be completed at each ratio of 6,538/10,00 shares.

2. The total cost of a trial shall be borne by each person.

1. Purport of claim

The inherited property of 2 others than the deceased shall be divided into the proportion of statutory inheritance to the claimant and the other party.

2. Purport of appeal;

(a) An appellant;

The adjudication of the first instance shall be revoked, and the inherited property shall be divided in such a way that the ratio of division of the inherited property is changed in favor of

(b) Other party 1 and 2

The judgment of the first instance shall be revoked. The claimant's request for a partition of inherited property shall be dismissed.

1. Facts of recognition;

A. On July 11, 2008, the deceased’s deceased and the deceased’s deceased Nonparty 2 (resident registration number omitted) (hereinafter “the deceased”). The deceased’s heir is a child claimant and the other party.

(b) Deposit claims of the inheritee;

At the time of commencement of the inheritance, the decedent had a deposit claim of KRW 400 million (Account Number 1 omitted) in Korea bank (hereinafter “instant deposit claim”).

(c) Claim for return of unjust enrichment by the inheritee

1) On July 7, 2008, nomenclature paid KRW 210,386,967 to the one bank account (Account Number 2 omitted) of the decedent.

2) 상대방 1은 피상속인의 하나은행 및 우리은행 예금통장과 인장을 소지하고 있음을 기화로 피상속인이 의식불명인 상태에서 2008. 7. 10. 09:35경 하나은행 ▷▷동지점에서 하나은행 예금계좌를 해지하고 2억 1,000만 원(그 중 2,000만 원은 피상속인의 간병비 지출 목적)을 인출하였다.

3) On the same day, other party 1 was paid KRW 100 million out of the said money by depositing it into the other party 2’s deposit account on the same day, and KRW 110 million was deposited into his/her own deposit account, and the amount of KRW 20 million out of which was paid to the inheritee’s nursing expenses for one year on July 20, 2008.

4) Accordingly, at the time of commencing the inheritance, the inheritee acquired a claim for return of unjust enrichment of KRW 90 million ( KRW 110 million - nursing expenses of KRW 20 million) against other party 1, and a claim for return of unjust enrichment of KRW 100 million against other party 2.

[Ground of recognition] Gap evidence 1, 2, 3, 27, Gap evidence 28-1, 2, Gap evidence 31-2, 3, Eul evidence 48, Eul evidence 32, the response of this court's order to submit financial transaction information to Korean banks, the whole purport of the examination

2. Whether the claim for division of inherited property of this case is legitimate

(a) Assumption of division of inherited property of a divisible claim;

1) Other party 1 and 2

The claim, etc. of this case is a divisible monetary claim, and in its nature it is divided into co-inheritors according to their statutory share of inheritance at the time of commencing the inheritance, and thus, the claim seeking division of inherited property is unlawful.

2) Determination

In principle, a divisible claim, such as a deposit claim and a claim for return of unjust enrichment, is divided to co-inheritors at the same time as the commencement of inheritance. However, if there is a special beneficiary among inheritors, if there is an excessive beneficiary, the special beneficiary is excluded from the inherited property division, but the excess beneficiary is divided into the proportion of inheritance even without returning excess profit. In addition, if a divisible claim exists with inherited property, the special beneficiary is divided into one’s share of inheritance and the special beneficiary becomes divided into one’s share of inheritance, while the contributor is unable to receive evaluation of the contributory portion, thereby causing unfair results among co-inheritors. Therefore, it is reasonable to include a divisible claim in the inherited property subject to division in order to ensure equity among co-inheritors.

In the case of this case, as seen below, the deposit claim of this case and the claim for return of unjust enrichment, which are divided claims, occupy the entire inherited property, and there is an excessive special beneficiary among co-inheritors, it is reasonable to include the deposit claim of this case and the claim for return of unjust enrichment in the object of division of inherited property in order to ensure the substantial equity among co-inheritors.

B. Non-existence of inherited property

1) Other party 1 and 2

Some of the deposit claims in the attached Table 1 (hereinafter referred to as the "deposit claim in this case") among the inheritance claims in the attached Table 1 have ceased to exist after the commencement of the inheritance due to the execution of pledge rights by the bank, the seizure, collection, etc. of the right to claim for payment of deposit money.

(ii) the facts of recognition

A) Execution and deposit of a pledge of deposit claims

(1) On April 21, 2008, the decedent deposited KRW 400 million in the bank with interest of KRW 5.75% (Account 3 omitted), and the said term deposit was deposited as is at the time of commencement of the inheritance, and the said term deposit was terminated on April 23, 2009 (principal principal + KRW 400 million + interest KRW 14,641,728).

(2) On the other hand, on April 21, 2008, the decedent created a pledge of the right to the fixed deposit claim amounting to KRW 130,40,000,00 for loans to 112,523,517 out of the maturity amount of April 23, 2009 against the claims for loans to 117,151,163 won against the other party 1 on July 31, 2009 (the other party’s claim amounting to KRW 117,151,163). The decedent deposited the remainder of KRW 302,118,211 (the sum of KRW 41,641,728 - the sum of KRW 12,523,517, a temporary deposit deposit amounting to KRW 112,523,517).

(3) On August 26, 2010, our bank deposited KRW 150,909,110 in the separate deposit account as above, and KRW 75,454,551 in the name of the claimant, and KRW 75,454,550 in the future of the claimant, and KRW 300,000 in the remainder of the deposit expenses.

B) Seizure, collection, etc. of claims for payment of deposit money

(1) Nonparty 3 filed a lawsuit against the inheritee to claim consolation money and division of property due to the destruction of de facto marriage by Seoul Family Court Decision 2007Dhap149577. While the above lawsuit was pending, the decedent died and the claimant and the other party took over the lawsuit.

On February 11, 2009, the Seoul Family Court rendered a judgment that “The part of the claim for division of property in the instant lawsuit was terminated upon the death of the inheritee. The claimant and the other party shall pay consolation money, each of 7.5 million won and damages for delay.”

The Seoul High Court (Seoul High Court 2009No. 1115) appealed against the above judgment, and from the above court, the part of the claim for division of property in the judgment of the first instance is modified as follows. The claimant and the other party pay 50 million won each and the damages for delay. The remaining appeals by Nonparty 3 are dismissed.”

The appeal by the other party 1 and the other party 2 on the above judgment was dismissed as of June 24, 2010, and the original copy of the judgment by the court of final appeal was served on the above other party on the 29th of the same month (Supreme Court Decision 2010Meu1201 Decided 201).

(2) Nonparty 3 received a seizure and collection order as to KRW 100,465,752 from Nonparty 1 and Nonparty 2’s claim for payment of the deposit money under the Seoul Northern District Court Order 2010TTTTT13788 as executive title, and received the distribution in the relevant claim distribution procedure. Nonparty 1 received KRW 25,376,304 from the above deposit money and KRW 25,376,303 from the other party 25,376,303, respectively.

(3) Nonparty 3 collected KRW 65,030,821 upon receipt of the seizure and collection order regarding the other party’s right to claim the payment of the deposited money by using the above final judgment as executive title, Seoul Northern District Court 2010TBT 16169, and the said other party paid the remainder of KRW 10,423,729 (75,454,550 - 65,030,821) on December 9, 201.

(4) Of the above deposit money, the deposit for the other party, other than the deposit for the claimant, was paid in full as above.

[Ground of recognition] Evidence No. 26, Evidence No. 28-1, 2, Eul evidence No. 28-2, Eul evidence No. 36-7, 8, Eul evidence No. 1, and the result of the order to submit financial transaction information to Korean banks by the court of first instance

3) Determination

According to the above facts, 112,523,517 out of the deposit claims after the commencement of inheritance was offset by the execution of the pledge rights of the bank, and the remaining deposit claims against the other party were deposited, and the other party did not exist at present due to the collection by the seizure and collection right holder and the transfer of deposit money.

However, the execution or deposit of such pledge right, and the seizure or collection by the inheritor by the inheritor is carried out against the will of co-inheritors. Thus, the agreement on the division of inherited property among co-inheritors cannot be deemed to have been reached. Therefore, in principle, inherited property should be divided by the inherited property division judgment.

On the other hand, as to the deposit claim of this case, a pledge was executed by our bank, and an amount equivalent to 112,523,517 won out of the principal and interest of the deposit was extinguished. However, the claimant and the other party who jointly succeeded to the decedent, who is a security, has acquired the right to indemnity against the non-party 1 (non-party 1) who is the debtor, it can be deemed that the deposit claim of this case was modified into the form of the right

In addition, 301,818,211 won of the remaining deposit claims are also deposited according to each statutory inheritance (1/4) in the future of the claimant and the other party, but this part of the deposit claims are changed into the form of the claim for payment of deposit money.

However, according to the above, the right to indemnity against the non-party 1 (the non-party 1: the counter-party 1 (the counter-party 1: the counter-party 1) was extinguished by seizure, collection, and withdrawal by the party 1 (the counter-party 1).

In such a case, in the absence of division of inherited property by a trial on division of inherited property, the deposit claim of this case can be deemed to have been inherited to co-inheritors according to the statutory share of inheritance. Therefore, the right to indemnity against non-party 1 (non-party 1) shall be deemed to have been acquired by the claimant and the other party according to the statutory share of inheritance. The deposit of the remaining deposit claim made according to the statutory share of inheritance shall be deemed to have been acquired by the deposited party through inheritance

However, if the instant deposit claim existed as it is, the division of inherited property could have been achieved by the co-inheritors by taking into account the special benefits prior to the commencement of inheritance by co-inheritors. However, if the subject of the adjudication on division of inherited property is determined to have ceased to exist solely on the ground that deposit claims do not exist in the form at the time of the commencement of inheritance because the exercise of pledge rights, the seizure and collection of the claim for payment of deposit money, regardless of the intention of the claimant or the other party, has been made regardless of the intention of the claimant or the other party, this would result in allowing the other party 1 and the other party 2, who already acquired special benefits exceeding his statutory inheritance, to inherit the said

Furthermore, the deposit claim deposited in the future of the claimant exists in the form of the claimant's claim for payment of deposit money, and the right to indemnity against the non-party 1 (the counter-party 1) also exists in the form of a claim for return of unjust enrichment against the counter-party 1 to whom the repayment was made. The counter-party's claim for payment of deposit money may be deemed to exist in the form of a claim for return of unjust enrichment

On the other hand, if the division of the deposit claim or the modified object is ordered in the instant case, the person to whom the deposit claim belongs and the ratio of attribution of each of the above claims shall be set accordingly. Therefore, the purport of division can be realized among coinheritors by means of a claim for return of unjust enrichment based on it

Furthermore, in light of the following: (a) the instant deposit claim was changed into the form of the right to indemnity against the non-party 1 (non-party 1) claims, the right to withdraw deposit money, the right to return unjust enrichment, etc.; and (b) the meaning of the division of inherited property in this case is to provide the criteria for settlement among the successors in the future, it is reasonable that the subject of division of inherited property in this case should be considered as the first deposit claim which is the inherited property.

The above other party's assertion is without merit.

3. Determination as to the claim for division of inherited property

(a) The inheritor and the statutory share in inheritance;

According to the above facts of recognition, the claimant and the other parties are co-inheritors as the children of the inheritee, and the statutory share of inheritance is 1/4 shares, respectively.

(b) Scope of inherited property subject to division;

1) The inherited property of this case is the claim for return of unjust enrichment of KRW 90 million against the instant deposit claim and the other party 1, as shown in the attached Table 1 list, and the claim for return of unjust enrichment of KRW 100 million against the other party 2.

2) The claimant's assertion and judgment

A) The real estate listed in [Attachment 2 List 1] ( Address 1 omitted)

The claimant asserts that the above real estate is the property trusted by the decedent to the other party 1, and should be included in the inherited property of this case.

According to the statements in Gap evidence Nos. 5 through 7, 10, and 32 (including paper numbers, hereinafter the same shall apply), it is recognized that the records of money recorded by the decedent was transferred from May 199 to September 199 to the above land use fee of the decedent, 1.5 million won per month from October 199 to March 2005, and 1 million won per month from April 2005 to May 2008, and the above land use fee of the decedent was transferred from May 4, 2008 to the deposit account of the decedent.

However, on the other hand, the following circumstances are acknowledged by Eul's evidence Nos. 9 through 13, Eul's evidence Nos. 36-1 through 6, and the overall purport of the examination, i.e., ① completing the registration of ownership transfer from the inheritee on December 1, 2005 on the above land due to donation on December 1, 2005, and direct payment of acquisition tax, gift tax, etc. related thereto. ② On May 1, 1999, prior to the transfer of the ownership of the above land, the counterpart 1 completed the registration of ownership transfer for the first floor of the above land from other party 2 to the second floor building on the ground of sale from August 1, 199 to the above land from August 4, 199 to the point of operating a restaurant with the above land "○○○○○○○," "△△△△△," and "△△△△, etc., ③ there is no special evidence to acknowledge that the above land is insufficient to recognize the other party 1 as the above land.

B) Deposit claim amounting to KRW 2.10 million (Counter. 15 or 17 of the attached Table 2 list, and cash No. 28 of the other party)

(1) The claimant's assertion

The deposit claims of KRW 500 million in the name of the other party 2, deposit claims of KRW 500 million in the name of the other party 1, deposit claims of KRW 500 million in the name of the other party 1, deposit claims of KRW 500 million in the name of the other party 6 claims, and deposit claims of KRW 600 million in the name of the other party 1, and deposit claims of KRW 400 million in the name of the other party 1 are merely borrowed by all the nominal parties, and they

(2) Facts of recognition

(A) On June 30, 2006, the decedent opened one bank account (Account Number 4 omitted) with three other parties on deposit of KRW 1 billion, but terminated on September 29, 2006 and deposited KRW 500 million in one bank account (Account Number 5 omitted) under the name of the other party 2. On December 28, 2007, the decedent transferred the remaining KRW 500 million to the one bank account (Account Number 6 omitted) under the name of the other party 2, but again remitted it to one bank account (Account Number 7 omitted) under the name of the other party 1 on December 28, 2007.

(B) On January 28, 2008, the decedent deposited the Korean bank account (Account Number 10 omitted) in the name of the other party 1’s non-party 1’s bank account by way of sealing 500 million won (Account Number 8 omitted) from the bank’s account in the aggregate of KRW 490 million (Account Number 8 omitted), and 10 million from the (Account Number 9 omitted), and then opening the bank account in the name of other party 1’s claim 6.

(C) On April 10, 2008, the other party 1 withdrawn a total of KRW 600 million (Account Number 11 omitted) from the Korean bank account of the inheritee, KRW 510 million from (Account Number 12 omitted), KRW 60 million from (Account Number 12 omitted), and KRW 30 million from (Account Number 13 omitted), and deposited the bank account (Account Number 14 omitted) in the name other than his own claim.

(D) At the time of opening a deposit account in the name of Nonparty 6 and Nonparty 4, the seal was used in the transaction application for the name of Nonparty 13 (Death on November 21, 1993) of the inheritee, and the personal identification card of the inheritee was copied in the application for transactions in the name of Nonparty 6 and Nonparty 4.

[Ground of recognition] Evidence No. 9-2, Evidence No. 14, 15, 17, Evidence No. 29-1, 2, Evidence No. 31-2, Evidence No. 31, Evidence No. 42, Evidence No. 3 of Evidence No. 3, and the result of the court of first instance order to submit financial transaction information to Korean banks

(3) Determination

According to the above facts of recognition, the amount deposited in the bank account in the name of other parties 1, 2, 6, and 4, and 2.1 billion won is all withdrawn from the account of the decedent. The application for the above transaction in the name of Nonparty 6 and Nonparty 4 is accompanied by the decedent’s identification card, or the seal of Nonparty 13 is affixed to the decedent’s prior claim.

However, it is difficult to view that there is a special circumstance to create a borrowed account under the names of other parties 2, 1 and 6, and 4 outside the claims when the decedent voluntarily cancelled the term deposit under the following circumstances, which are acknowledged by considering the overall purport of the examination as stated in the evidence Nos. 3 through 8: (i) it is difficult to view that there is a special circumstance to create a borrowed account under the names of other parties 2, 1 and 6, and 4; (ii) it seems that the decedent tried to organize the assets among the inheritors because there is concern that there is a dispute over the inherited property under the aggravation of health, such as repeated hospitalization and discharge on several occasions after the above cancer diagnosis at around 206; (iii) the claimant's claim for legal reserve against other parties 1 and 2 (Seoul Eastern District Court 209Na1229). However, the claimant's claim that each of the above deposits were donated or donated by the decedent from the decedent, and (iv) the claimant did not admit that there is a lack of evidence to acknowledge the other party 1 and 2010 other party.

(c)Special proceeds;

1) Determination criteria for special benefits

Article 108 of the Civil Act provides that, in a case where there is a person among co-inheritors who received a donation or testamentary gift of an inherited property from the inheritee among those who received such donation or testamentary gift, if the gift property does not reach his/her own share, the portion in excess shall be included in the share of inherited property to the extent of the shortage thereof. This purport is to treat the gift property as the advance payment of the share of inherited property in order to ensure the fairness among co-inheritors in cases where there is a special beneficiary who received a donation or testamentary gift from the inheritee among co-inheritors, and to consider it in calculating the specific share of inherited property. Thus, what constitutes special benefits shall be determined by taking into account the property of the inheritee, income, living standard, home situation, etc. of the inheritee and by taking into account the equity among co-inheritors (see Supreme Court Decision 97Meu513, 520, 97Du122, Dec. 8, 198).

2) Special benefits of co-inheritors

In full view of the overall descriptions and examinations of Gap's evidence Nos. 4, 14, 15, 17, 22, 27, Eul's evidence Nos. 9 through 11, 14, 18 through 25, 28, 29, 30, and 40, the fact that each of the assets recorded in the list of special benefit property of attached Table 2 may be recognized to be donated to the claimant and the other party before the predecessor's death.

Meanwhile, in calculating the amount of special profits, the market value of the donated property shall be calculated as at the time of the commencement of the inheritance. Therefore, if the donated property is money, it is reasonable to deem the donated amount to be the value of special profits by converting it into the monetary value at the time of the commencement of the inheritance. Such conversion of monetary value is reasonable to reflect the price fluctuation rate between the special profits to the time of the commencement of the inheritance. However, it is reasonable to use GDP displays in the Bank of Korea stated in the attached Table 3, which appears to reflect the price fluctuation rate of the whole economy.

In the end, the monetary value at the time of commencement of the commencement of the special profit-making cash shall be calculated according to the formula of "special profit-making 】 GDP DP D d d d d d d d d d d d d d d

3) Determination as to the allegations by the parties relating to the special benefits of other parties 1

A) Attached Table 2 Real Estate Nos. 2 in Attached List 1 ( Address 1 omitted)

(1) The other party 1 asserts that the other party 2 newly constructed the 1st floor building of neighborhood living facilities on the ground of the Nam-gu Incheon Metropolitan Government ( Address 1 omitted), that the other party 1 purchased the 100 million won from the other party 2 on April 29, 1999, and acquired the price by payment on December 16, 2002, and that it is not a arbitable property from the inheritee.

According to the statements in Gap evidence Nos. 4, 27 and Eul evidence Nos. 10 and 12, it is recognized that the other party 2 obtained a building permit on April 18, 1994 with respect to the 196.86 square meters of the 1st floor of the land neighborhood living facilities in Nam-gu, Incheon, ( Address 1 omitted), obtained approval for use on August 29, 1994, completed registration of preservation of ownership of the above building on April 26, 199; completed registration of ownership on May 3, 199 for the above building on May 3, 199; completed registration of ownership transfer on April 29, 199; the other party 1's wife and 4 other party 1's wife paid KRW 100 million to other party 1 on December 16, 2002.

However, even based on the other party 1’s assertion, the date on which the above building was purchased and the transfer of ownership was completed on May 3, 199, and the date on which the transfer of ownership was completed. The date on which the purchase price was paid to the other party 2 was paid KRW 100 million on December 16, 2002, and it is difficult to recognize the other party 1’s allegation as it is.

Rather, the following circumstances, which are acknowledged by the statements in the evidence Nos. 9 through 11, namely, ① the decedent donated the real estate listed in the No. 2 List No. 1, which is the site of the above real estate to the other party 1 and completed the registration of ownership transfer on Nov. 9, 2005, and the above real estate was constructed and the registration of ownership transfer was completed under the name of the other party 2, and even after the registration of ownership transfer was completed under the name of the other party 1, the land of the above real estate remains as owned by the inheritee; ② the building directly constructed the building on the site owned by the inheritee to be owned by the other party 2 and the punishment was completed, and the real estate was sold to the other party 1 after the completion of the preservation registration. In full view of the following circumstances, it is reasonable to view that the decedent, after the building of the above real estate under the name of the other party 2, donated the above real estate to the other party 1.

(2) However, according to the overall purport of the evidence Nos. 10 and 46 of Eul, the use and size of the building on the building ledger as of May 3, 1999, which had been completed the said registration of ownership transfer, was "196.86 square meters on May 3, 199," but the actual building area was "19.19 square meters on the one floor of 196.86 square meters on the building ledger," but the actual building area was "201.19 square meters on August 19, 199 (hereinafter "the building prior to the extension of the building in this case"). The other party 1 extended the building with the permission of extension on the 2nd floor of 197.53 square meters on August 19, 199, and once again on March 9, 2007, extended the building size of 35.36 square meters on the 2nd floor and completed the said extension report, and the other party 1 had been operated from around August 19, 19, 1999.

According to the above facts, there is no evidence to acknowledge that, as at the time of the completion of the registration of transfer of ownership, the building which was received by counterpart 1 from the decedent is the dives building prior to the extension of this case, and furthermore, there is no evidence to prove that the decedent donated the property to the other party 1 until the subsequent extension of the building (the circumstance that the other party did not submit evidence that the extension cost of the building was borne by the other party 1 is difficult

Meanwhile, according to the evidence No. 45 as to the value at the time of commencement of the inheritance of the building in the drawing and drawing Dong prior to the extension of this case, the value at the time of commencement of the inheritance of the building in the drawing and drawing building after the extension of this case shall be 619,000 won per square meter.

Therefore, it is reasonable to regard the value at the time of commencing the inheritance of the building in the drawing and drawing building prior to the instant extension as KRW 124,536,610 (201.19 square meters x 619,000), barring any special circumstances.

B) For each real estate in the sequence 7 through 10 of Attached 2 List 1 (Seoul Mapo-gu ( Address 2, 3 omitted) and each ground building;

The other party 1 asserts that he only purchased each of the above real estate on August 24, 1978 and that he did not have increased it from the decedent.

According to the statements in Gap evidence Nos. 18-1 through 4 and evidence Nos. 38-1 through 4, the decedent completed provisional registration on the ground of a pre-sale agreement on July 2, 1974, and the decedent 7 sold the above real estate to the decedent at KRW 5,500,000 on August 13, 1975, and the above purchase price was fully received, and around September 1975, the decedent issued a seal imprint certificate to use the above provisional registration to transfer the ownership of the above real estate; the decedent cancelled the above provisional registration on August 28, 1978; and on the same day, the decedent 1 completed the registration of ownership transfer on each of the above real estate.

In light of the above facts, if the other party 1 was born on October 1954 and was only 23 years old at the time of the purchase of each of the above real estate, and there was no evidence to deem that the above other party had income at the time, the party who purchased each of the above real estate from the counter-claim 7 was the inheritee, even though there was no evidence to deem that the transfer of ownership was made under the name of the inheritee, and the party who purchased the above real estate from the counter-claim 7 was the inheritee, and the inheritee immediately donated each of the above real estate to the counter-party 1 without completing the transfer of ownership under his name, and directly made the transfer of ownership from the counter

Therefore, it is reasonable to view that the decedent donated each of the above real estate itself to the other party 1.

The above other party's assertion is rejected.

C) 1/3 of the successful bid price for the real estate ( Address 4 omitted) in [Attachment 2] No. 11] in [Attachment 2 List No. 11]

The other party 1, upon the invitation of the inheritee, lent the above other party KRW 100 million, KRW 5.1 billion, KRW 100 million, KRW 110 million, and KRW 1100 million, to the other party, the other party, the other party, and the claimant as the right to collateral security, and the other party, the right to collateral security was created with the claimant as the right to collateral security, and the other party, the other party, the other party, the other party, and the claimant did not pay the loan, and the other party, the right to collateral security was claimed through a voluntary auction, and there was no fact that the other party, the other party, and the claimant did not pay the loan.

In full view of the overall purport of the statements and examinations by evidence Nos. 22-1, 2, 35, 37, and 22, 23, 24, and 29 as to the above real estate, the decedent was a person who has engaged in bond business on February 2, 1994 and lent KRW 310 million to 8,000,000 to 1,000,000 won to 1,000,000 won to 2, and 3, including the claimant, 1, and 2, as to each of the above real estate, the mortgagee was established with 5,00,000 won to 13, 195, and 380,000 won to 3,00,000 won to 1,00 won to 2,00 won to 3,00,000 won to 1,00 won to 196.

If so, the other party 1 would have received money equivalent to 1/3 of the successful bid price of the above real estate from the decedent.

The above other party's assertion is rejected.

D) Sales proceeds of 12 real estate ( Address 5 omitted) Nos. 12 in Attached Table 2 List 1

The other party 1 asserts that the other party 1 and the other party 2, etc. at the time paid the price of KRW 10 million to the non-claim 9,000,000 to purchase the shares of KRW 1/3 of the non-claim 9-1/3 of the non-claimed land of Pyeongtaek-si ( Address 5 omitted), and that there was no increase in the purchase fund

Considering the overall purport of Gap evidence Nos. 22-1, 2, 35, Gap evidence Nos. 37, 25, and Eul evidence Nos. 25, 30, and Eul evidence Nos. 25 and 30, the ownership transfer registration has been completed in the name of the decedent, non-claim No. 11, and non-claim No. 9 on Nov. 1, 1986, with respect to the size of 4,403 square meters of the above real estate. The decedent completed the registration of ownership transfer on June 2, 1987 on the same day as the purchase of non-claim No. 9 shares of the above real estate on the same day, the decedent, non-claim No. 1, and the non-claim No. 2 were present on June 16, 198 to the effect that "No. 1/3 shares of the above real estate were acquired as a witness of the non-claim No. 1/30,130,873 won and the defendant No. 237.

In full view of the above facts of recognition, it is reasonable to deem that other party 1 had received 1/3 of the purchase fund of 1/3 shares out of the above real estate from the decedent.

The above allegations by the other party cannot be accepted.

E) [Attachment 2] 13 real estate Nos. 13 in [Attachment 2] (No. 103 Dong 1901, Dong 1901]

The other party 1 asserts that the above apartment house is not the apartment house itself, but the house purchased by the other party with its own funds from the decedent, but it is not a gift property from the tax authority. Even if it is a giftable property, the other party 1 concluded a sales contract with the seller and paid the purchase price, so the gift object is not the apartment house itself, but the purchase fund.

According to the evidence Nos. 21 and 28 of Eul, it is recognized that the sales contract with the purchaser as of December 26, 1996 was concluded with the purchaser as of December 26, 1996, and the above other party completed the registration of ownership transfer with respect to the above real estate on March 28, 197.

However, according to the statements in Gap evidence Nos. 7, 19, and 20, the defendant entered into a sales contract for the apartment of △△△△, and the defendant paid KRW 153 million to the above apartment of △△, and taxes such as acquisition tax, registration tax, property tax, etc. were paid by the predecessor, and the decedent was living together with the non-party 3, who was a de facto spouse, in the above real estate until he died after March 1997, and the other party 1 purchased the above real estate from △△△△ apartment, 103, 602, and 1,000,000 won.

As can be seen from the above facts, in light of the following facts, it is reasonable to view that the seller and the seller of the apartment in this case had increased the number of the apartment in Do, i.e., the buyer of the apartment in this case from the seller and the buyer of the apartment in this case, the buyer of the apartment in this case did not submit all the data on the payment of the purchase price of the apartment in this case, and the other party did not seem to have necessary or sufficient means to purchase the apartment

(f) the share of the site and the purchase price for the share of the above ground store in Jung-gu, Seoul ( Address 8 omitted);

According to the purport of Gap evidence No. 39 and the purport of the entire pleadings, non-claim 4 can be acknowledged that he purchased from non-claim 10 on March 20, 200 the shares of 0.646/90.6 on the above ( Address 8 omitted) and 0.45/63.04 on the above ground and the shares of 0.65/63.04 on the above ground from among the shares of 90.6m2 on the above ( Address 8 omitted) and the shares of 0.45/63.04 on the above ground, and the counter-party 1 is a person who donated the above shares of 36

Meanwhile, Article 1008 of the Civil Act provides that "where there is a person who received a gift or testamentary gift from an ancestor among co-inheritors, and the gift property does not reach his/her own share of inheritance, the portion deficient shall be inherited within the extent of the portion deficient." As such, in the calculation of the share of inheritance, in principle, considering the gift or testamentary gift in cases where the inheritor’s lineal descendant, spouse, and lineal ascendant received a testamentary gift or testamentary gift, the heir does not have the obligation to return the gift or testamentary gift. However, if it is deemed that the gift or testamentary gift is not different in substance from the gift or testamentary gift, considering the circumstances leading up to the gift or testamentary gift, the value of the gift or testamentary gift, the value of the gift or testamentary gift made by the inheritor to his/her heir, his/her lineal descendant, spouse, lineal ascendant, etc., it is reasonable to consider such gift or testamentary gift as a special benefit (see Supreme Court Order 2006Du344, Aug. 28

In the instant case, considering the relationship between the decedents, Nonparty 4, and Nonparty 1, equity among other inheritors, etc., it is reasonable to view that the said purchase fund amounting to KRW 36 million as having been donated by Nonparty 1 to the decedents and constitutes a special benefit.

G) Claim No. 4 and claim No. 6 deposit claims (No. 16, 17 cash)

(1) The other party 1's assertion

In accordance with the inheritee’s proposal that Nonparty 1’s wife, Nonparty 4 deposited KRW 150,000 or KRW 2,000 per month to the inheritee, and deposited KRW 173,00,000 per year to the principal. Since Nonparty 1’s wife and Nonparty 4 returned KRW 600,000 to the principal and interest of the inheritee’s property, this does not constitute a donated property of the inheritee.

Even if the said money is the donated property of the inheritee, the sum of KRW 1.1 billion deposited by the decedent to the account in the name of Nonparty 4 or Nonparty 1’s children, other than Nonparty 6’s claims, is merely the donated property of Nonparty 4 and Nonparty 6, and thus, it should not be included in the Defendant’s special profit.

(2) Determination

First, there is no evidence to deem that the non-claim 4 remitted the monthly amount of KRW 1.5 million or KRW 2 million to the decedent as the fund to raise money (However, as seen earlier, it is only recognized that the non-claim 4 paid KRW 1.0 million or KRW 2 million per month to the decedent under the name of the land user fee of the Nam-gu Incheon Metropolitan City ( Address 1 omitted).

On the other hand, on January 28, 2008, the decedent deposited KRW 500 million into the bank account (Account Number 10 omitted) in the name of the non-party 1's children, and deposited KRW 600 million into the bank account (Account Number 14 omitted) in the name of the non-party 1's wife on April 10, 2008, and each donation was made as above.

Furthermore, when considering the overall purport of the questioning in the statement No. 3, the decedent stated that: (a) the decedent visited the wheeler at the time and visited the △△ branch of the Korean bank with the other party 1, and then withdrawn the money from his own deposit account and deposited it into the other party 6’s deposit account by sealing it on the withdrawal certificate prepared by the other party 1; and (b) the party taking the lead of paying KRW 600 million to the other party 4’s deposit account may recognize the fact that the other party was the one; and (c) the other party 1 received the above deposit passbook and the seal impression from the decedent 6 before the death of the decedent and kept it. In light of the personal relation of the above parties, the reason why each deposit was withdrawn and deposited, the value and nature of the donated goods, and the balance with other inheritors, it is reasonable to deem that the other party 1 actually constitutes a donation from the decedent and constitutes a special profit.

(h) Seoul Songpa-dong, Songpa-gu, Songpa-gu, Seoul to purchase purchase price of 602 Dong 103 Dong 602 100 million won

The claimant asserts that the decedent donated 100 million won out of the purchase price of the above real estate to the other party 1.

According to Gap evidence Nos. 40 and Eul evidence Nos. 26 and 31, other parties 1 purchase the above apartment from 15,000 won on December 25, 1996 and completed the registration of transfer of ownership on March 30, 1997.

Furthermore, it is not sufficient to recognize the above purchase price of KRW 100,000 as to whether the decedent donated the above purchase price to the above other party only with the statement of evidence No. 7, and there is no other evidence to acknowledge

(i) the share of the land ( Address 9 omitted) in Jung-gu, Seoul (No. 51.36/291 shares) and the third-story housing building (No. 4 real estate) above the ground;

According to the statements in Eul evidence Nos. 14 through 17, it is recognized that the other party 1's wife and 4 other than the other party 1's wife have completed the registration of ownership transfer from the other party 16, the former owner on July 12, 2004 on the ground of sale and purchase on July 8, 2004.

However, there is no evidence to prove that the decedent donated the above immovables to 4 others.

(j) Seoul Songpa-gu ( Address 7 omitted) △△ apartment 103 Dong 602 KRW 100 million

The claimant asserts that the decedent donated 100 million won out of the purchase price of the above real estate to the other party 1.

According to the statement in Eul evidence 26, it is recognized that the other party 1 purchased the above apartment on December 25, 1996 and completed the registration of ownership transfer on March 20, 1997.

Furthermore, with respect to whether the decedent donated KRW 100 million out of the above purchase fund, it is not sufficient to recognize it only by the statement of evidence No. 7, and there is no other evidence to acknowledge it.

(k) Cash donation on July 2008, 2008.

The claimant asserts that, around 2000, the decedent gave each donation of KRW 60 million to the other party 1, and KRW 14,87,440 on July 9, 2008.

First, there is no evidence to deem that the decedent donated 600 million won to the other party 1 in 2000.

Meanwhile, according to the evidence evidence Nos. 24, 41, and 42, it is recognized that on July 9, 2008, the transfer of KRW 14,877,400 to other party 1’s deposit account from the inheritee’s deposit account. On May 31, 2010, the Seoul Eastern District Court 2009Kahap1229 decided May 31, 2010, the statement that the transfer was scheduled to be notified of inheritance tax by deeming the details of the transfer as the gift to be the gift to other party 1 of the inheritee.

However, according to Gap evidence Nos. 44-1 and 2, the defendant 1 received the said money from the decedent at a charnel charge immediately before the death of the decedent, and then paid the said money in total of KRW 1,5630,00,000 on June 13, 2008.

In light of the above details of the transfer of funds and the details of its disbursement, the withdrawal of KRW 14,877,400 cannot be deemed as a donation to the inheritee’s counterpart 1, and there is no other evidence to acknowledge it.

3) Determination as to the allegations by the parties relating to the special benefits of other parties 2

A) 1/3 of the successful bid price for the real estate (location 4 omitted) Nos. 1 in [Attachment 2] No. 1 in [Attachment 2] and 1/3 [Attachment 2]

The other party 2 asserts that, although the non-party 5 loaned KRW 100 million to the non-party 8 and completed the right to collateral security, the non-party 2 was awarded a successful bid through a voluntary auction, and the defendant did not pay KRW 380 million to the non-party 8,00,000,000 for the successful bid price, the above successful bid price cannot be deemed as the property of the inheritee, and even if the predecessor donated the above real estate successful bid price to the non-party 5, it cannot be deemed as the special profit of the above other party

Therefore, the fact that the decedent first paid the bid price of the above real estate is as seen earlier.

In addition, considering the status relationship of the parties, the value and nature of the donated article, the equity with other inheritors, it is reasonable to view that the other party 2 was donated by the decedent and constitutes a special benefit.

B) Sales proceeds of 2 real estate [1/3 shares in non-claim 9 shares (1/3 shares in non-claim 1/3 shares in non-claim 9 shares in non-claim 4,403 square meters in the miscellaneous land 4,403 square meters in the attached Table 2

The other party 2 asserts that he paid the above real estate purchase price of KRW 10 million to non-party 9 and purchased it, and that he did not have increased the purchase fund from the decedent.

However, as seen earlier, it is reasonable to view that the above other party had received 1/3 of the above real estate purchase fund from the inheritee.

C) Co. 6 real estate in [Attachment 2] Nos. 2, 6, Seoul Central District ( Address 10 omitted) and sales price of the land and its ground buildings

The other party 2 asserts that, while performing duties as a certified judicial scrivener at the time, the above real estate purchase fund of KRW 1,382,50 was raised, and that there was no significant amount of purchase fund from the decedent.

However, in light of the fact that the other party 2 was only 22 years of age at the time of the conclusion of the above sales contract, and there is no evidence to prove that the other party 2 had engaged in income activities that are 1,382,50 won of the sales price of the above real estate at the time, the above

D) [Attachment 2] 7 Real Estate (No. 11-3 shares in Claim No. 11 out of the miscellaneous land (No. 5 omitted) in Annex 2 List No. 7

According to Gap evidence Nos. 22, 23, 24, and 48, it is recognized that other party 2 completed the registration of transfer of ownership on July 23, 2006 by reason of sale on July 23, 2006.

The other party 2 asserts that the above real estate was purchased from the third party 11, and that it was not a evidence of the decedent.

According to the evidence evidence Nos. 20 through 23, the seller’s non-party 11, who is the buyer, can be acknowledged as having paid all the registration tax, property tax, etc. as to non-party 11 shares out of the above real estate, and the fact that the non-party 11 did not receive all the purchase amount from counter-party 2.

In full view of the above facts, 1/3 shares in the above real estate are substantially acquired by the decedent, and it is reasonable to deem that the decedent owned the above real estate in the name of Nonparty 11, and that it was donated to Nonparty 2.

(e) KRW 500 million deposit in one bank (attached Form 2 No. 8 cash)

The fact that the decedent opened a bank account (Account Number 5 omitted) in the name of the other party 2 on September 29, 2006 and deposited KRW 500 million is as mentioned above.

Although the other party 2 asserts that the above deposit was received by the decedent with respect to the real estate owned by the other party 2, there is no evidence to acknowledge it. Ultimately, it is reasonable to view that the above KRW 500 million was a donation by the said decedent to the said other party. The above other party’s assertion is rejected.

바) 서울 송파구 풍납동 ◎◎◎◎아파트 103동 603호의 매수자금 1억 원

The claimant asserts that the decedent donated 100 million won out of the purchase price of the above real estate to the other party 2.

살피건대, 을가 제41호증의 기재에 의하면, 상대방 2와 청구외 5는 1996. 12. 25. 청구외 19 외 3인으로부터 위 ◎◎◎◎아파트 103동 603호를 대금 1억 2,300만 원에 매수한 사실은 인정된다.

Furthermore, as to whether the decedent donated KRW 100 million out of the purchase price to the above other party, it is not sufficient to recognize it only by the statement of evidence No. 7, and there is no other evidence to acknowledge it.

(g)cash donation on or around 2000 and around 2006;

The claimant asserts that, around 2000, the decedent donated KRW 30 million to other party 2, KRW 40 million on February 2, 2006, KRW 60 million on October 31, 2006, KRW 10,506,096 on July 7, 2008.

First, there is no evidence to deem that the decedent donated KRW 30 million to the above other party on July 7, 2008, and KRW 10,506,096 on July 7, 2008 (Evidence A No. 24, the donee of the above shares out of the company is the other party).

Meanwhile, according to the evidence evidence No. 24, in response to the order to submit tax information to the Seoul East District Court on May 31, 2010, it is recognized that the head of Song District Tax Office: (a) stated on May 31, 2010 that the above sum of KRW 100 million was a donation to the inheritee 2; and (b) was scheduled to impose inheritance tax. However, according to the evidence No. 25, it can be recognized that the decedent stated the above sum of KRW 60 million as a loan to Nonparty 2 on his/her own body, and in light of these circumstances, it is insufficient to acknowledge the above sum of KRW 100 million only with the statement No. 24, and there is no other evidence to prove otherwise.

4) Determination as to the allegations by the parties relating to the special benefits of other parties 3

A) Seoul Jung-gu ( Address 11 omitted) Special Metropolitan City sales price

The other party 1 and the other party 2 asserted that, from his predecessor, the other party 3 had increased the purchase price of 278.7m2 to 337,200,000 won, which is equivalent to 1/5 of the purchase price of 1/50,000,000,000 won from his predecessor.

In full view of the overall purport of the examination as indicated in Gap evidence Nos. 27 and Eul evidence Nos. 33-1 and 3-2, there is no evidence to acknowledge that the decedent donated the amount equivalent to 1/5 out of the purchase price of the above real estate to the other party 3 on Oct. 14, 1996 under the name of the other party 3 on Oct. 14, 1996, and the ownership transfer registration was completed in the name of the other party 3 on Oct. 14, 1996 on Oct. 14, 196 on the whole of the above site including the other party 3 shares, and there is no other evidence to acknowledge that the other party 3 donated the amount equivalent to 1/5 out of the purchase price of the above real estate to the other party 3 (the other party's assertion of the other party 11 and 2 did not show that the other party 3 had sold the above real estate shares to the other party 13 and 4).

B) Cash donation in 199.

The other party 1 and the other party 2 asserted that the decedent paid KRW 100 million to the other party 3 around 1999, but the entries of the evidence No. 34 alone are insufficient to recognize the above assertion, and there is no other evidence to acknowledge it.

C. Amount of remittance from 2000 to 2001

The claimant, the other party 1, and the other party 2 asserted that the decedent donated the sum of 51,137,620 won to the other party 3 during the period from 2000 to 2001.

According to each of the statements in Gap evidence No. 47-1 through 7 and Eul evidence No. 37, it can be acknowledged that the other party 3 has received US$34,400 (Korean Won 51,137,120) from the inheritee five times as follows.

(1) On December 14, 201, 201, 13. 5,000, 5,622,500 Gap 47-1 2, 200 on March 15, 2007, 196. 1,280,300 Gap 47-23, 47-14, 264, 400 Gap 47-34, 400 on April 14, 2001; 2,66,002, 66,000 Gap 47-45, 200 on December 27, 200, 200, 200 Gap 47-45, 200, 200, 200, 200, 2015, Gap 47-5, 200-68, 2008, Gap 207

The claimant asserts that the decedent additionally donated USD 5,000 to the other party 3, USD 5,000 on June 9, 200, USD 5,000 on June 10, 200, USD 5,000 on July 12, 200, USD 5,000 on July 12, 200, ④ April 27, 2001, but there is not any other evidence to acknowledge it.

Furthermore, as to whether the above KRW 51,143,120 paid by the decedent constitutes the special benefit of the other party 3, it is difficult to evaluate that the decedent was given prior share of the above other party out of the inherited property to return to the other party 3, in light of the size, period, frequency and purpose of the above amount received by the other party 3, and the assets of the inheritee’s life, income, living standards, equity with other co-inheritors, etc.

5) Determination of the claimant's assertion regarding the special benefit-related party ( Address 8 omitted) interest in the land and the purchase fund of the share of the building on the ground)

The other party 1 and the other party 2 asserted that the claimant had increased the share of the land in Jung-gu Seoul Special Metropolitan City ( Address 8 omitted) and the purchase fund of the share of the above ground from the decedent 36 million won.

According to the purport of the entry and examination by Eul as to No. 38, the fact that the claimant completed the registration of transfer of ownership on April 29, 2000 on the ground of sale on March 2000 with respect to 0.65/90.6 shares in Jung-gu, Seoul ( Address 8 omitted) and 0.45/63.04 shares in 0.6 square meters in 90.6 square meters, and 63.04 square meters in 204.73 square meters in above ground buildings.

However, there is no evidence to prove that the decedent donated the above real estate purchase fund to the claimant.

(d) the determination of specific shares of inheritance;

1) General Principles

The aggregate value of the property of an inheritee at the time of commencement of inheritance and the special proceeds of coinheritors at the time of commencement of inheritance shall be determined by adding the value of the property of the inheritee at the time of commencement of inheritance, and the calculated amount of each statutory share of inheritance calculated by multiplying the statutory share of inheritance by the amount of statutory share of coinheritors, and then calculated by deducting the special proceeds from each statutory share of inheritance. If some of the special profits of an inheritor exceeds the statutory share of inheritance, the special beneficiary does not have a duty to return the special proceeds of excess, but does not have any share in the real estate of inherited property. As such, the specific share of the other inheritors shall be deemed as non-existent

Pursuant to the above principles, the specific shares of inheritance between the claimant and the other party in this case are calculated as follows:

(ii) the value of deemed inherited property: 8,358,316,155 won;

(Propertys 590,00,000 + Special proceeds of the claimant 181,467,047 + Other 5,421,288,343 + Other 2,165,560,765 Won of other party 2)

3) Statutory amount of inheritance

○ Claimant and Other Parties: 2,089,579,038 won, respectively.

(8,358,316,155 won x statutory inheritance shares 1/4, and abandoned below won)

(iii) the specific value of each heir’s share in inheritance taking into account special benefits;

○ Claimant: 1,908,11,991

legal share of inheritance (2,089,579,038 - Special Profits 181,467,047)

○ Other 1: -3,331,709,305 won

(Legal amount of inheritance 2,089,579,038 - Special proceeds 5,421,288,343)

○ Other 2: -75,981,727 won

(Legal amount of inheritance 2,089,579,038 - Special proceeds 2,165,560,765)

○ Other 3: 2,089,579,038 won

(iv) a specific portion of inheritance after the share of excess special proceeds;

According to the above calculation, since the other party 1 and the other party 2 are over special beneficiaries, their specific shares of inheritance are zero, and the total sum of the above special profits of KRW 3,407,691,032 is divided according to the statutory shares of the co-inheritors as follows.

○ Claimant: 204,266,475 won

[1,908, 111, 991 - 1,703,845,516 (the above special profit 3,407,691,032 x 1/2)]

○ Other 3: 385,733,522 won

[2,089, 579,038 - 1,703,845,516 (the above special profits 3,407,691,032 x 1/2)

○ Total amount of shares in specific inheritance: 589,99,97 won (204,266,475 won + 385,73,52 won)

(e) Method of subdivision;

1) Method of partition

Since a deposit claim and a claim for return of unjust enrichment, which are the subject of the instant inherited property division trial, are a monetary claim that can be divided, it is reasonable to divide it into a way that the claimant who is an heir, excluding the other party 1 and the other party 2, and the other party 3, can be completed in accordance

(ii) calculation of specific inheritance shares;

○ Claimant:0.3462 (Value 204,266,475 won in specific shares of inheritance ± Value of specific shares of inheritance ± Total 589,99,997 won in inheritance of heirs and decimal point below decimal point)

○ Other 3:0.6538 (Value of specific shares of inheritance 385,73,522 ± Value of specific shares of inheritance 589,99,997 won in total and value of specific shares of inheritance of inheritors, and rounded off from the fifth place below decimal point)

F. Sub-decision

Therefore, according to the specific shares of inheritance calculated as above, it is reasonable to divide the claimant's share of 3,462/10,00 and the other party 3's share of 6,538/10,000 shares into two categories.

4. Conclusion

The claim for division of the inherited property of this case shall be determined as above, and the judgment of the court of first instance is unfair in conclusion, so the judgment of the court of first instance shall be modified as above (the other party 3 has not filed a complaint against the judgment of the court of first instance, but all the inheritance claims in attached Form 1 shall be divided into the claimant and the other party 3, as it is necessary for the consolidated decision).

[Attachment]

Judges Kim Yong-seok (Presiding Judge)