[1] In a case where a co-inheritors who has waived inheritance is included in the title holder of the registration of inheritance on real estate, whether the co-inheritors who have renounced inheritance can be determined as a title inheritor (negative)

[2] In a case where the registration of inheritance pursuant to the inheritance shares was completed under the name of co-inheritors Gap, etc. who renounced inheritance on the inherited property, the case holding that the judgment below erred by misapprehending the legal principles on the ground that the registration of inheritance under Gap was completed only without a specific deliberation as to the circumstances where the registration of inheritance shares in Gap's name was completed

[1] A reference inheritor who becomes the other party to a claim for recovery of inheritance refers to a person who possesses all or part of the inherited property by referring to the person who has an appearance that reliances on the person who is a property inheritor even though there is no legitimate inheritance right, or who takes possession of all or part of the inherited property by referring to the person who takes possession of another inheritor's inheritance right. As such, a person of co-inheritors may not register the ownership of the inherited property under the sole name as to the inherited property by referring to the fact that only one of co-inheritors who has renounced the inheritance has the inheritance right, and only one of them has the inheritance right. A person who has renounced the inheritance may not easily have the title of co-inheritors who has renounced the inheritance registration by referring to the fact that the co-inheritors still remains in the position of co-inheritors. However, if registration based on such inheritance is made without the intention of the title holder and regardless of the intention of referring to the title holder in the lawsuit for recovery of inheritance by a third party, it cannot be deemed a reference inheritor referred to in the lawsuit for recovery of inheritance.

[2] In a case where the inheritance registration pursuant to the inheritance shares was completed under the name of co-inheritors Gap, etc. who renounced inheritance on the inherited property, the case holding that the court below erred in the misapprehension of legal principles as to the pertinent shares merely because the registration of inheritance shares in the name of Gap was completed without any specific deliberation as to the circumstance where the registration of inheritance shares in the name of Gap was completed, even though it is difficult to conclude that the registration of inheritance shares in the name of Gap was completed according to its intention in light of all circumstances

[1] Articles 265, 99, and 106 of the Civil Act / [2] Article 999 of the Civil Act

[1] Supreme Court Decision 93Da24490 delivered on March 11, 1994 (Gong1994Sang, 1171) Supreme Court Decision 96Da4688 delivered on January 21, 1997 (Gong1997Sang, 604)

Plaintiff 1 and three others (Law Firm Jin, et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jung-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na97279 decided April 9, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

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

1. As to the third ground for appeal

A. According to the records, the defendant's assertion that the non-party 1 donated his share to the defendant with respect to the real estate before the division of this case, unlike the defendant's assertion that the non-party 1 renounced his inheritance during the proceeding of this case. Thus, the court below did not err by omitting judgment on the non-party 1.

B. Co-ownership of co-owned property is co-ownership by successors, and one of co-owners of the co-owners of the co-owned property is the act of preserving the co-owned property, and can seek the cancellation of the registration of invalidation as to the co-owned property (see Supreme Court Decision 94Da61649 delivered on February 9, 196).

In light of the above legal principles, the decision of the court below that the plaintiffs can seek cancellation of the remaining shares except the defendant's share in the non-party 1/11 with respect to the real estate of this case is just, and there is no error of law by misunderstanding the legal principles as to preservation of the common property

2. Regarding ground of appeal No. 4

According to the records, since the plaintiffs were aware that the court of first instance and the court of appeal legitimately delegated the attorney-at-law to the non-party 2, it is just that the court below recognized the non-party 2 as the attorney-at-law of the plaintiffs, and there is no error of law by misunderstanding the legal principles on

3. As to the ground of appeal that the plaintiffs' lawsuit of this case constitutes the lawsuit for recovery of inheritance

An inheritor who becomes the other party to a claim for recovery of inheritance refers to a person who has the external appearance that helps the other party to the claim for recovery of inheritance, even though there is no legitimate inheritance right, or a person who possesses all or part of the inherited property by referring to the person who has the external appearance that helps the other party to the claim for recovery of inheritance to believe that the inheritor is the inheritor. It should be determined by the entry of the registry that publicly announces the relationship of rights and relationship outside the register, and even if the reason for acquisition is stated in the guarantee and confirmation that is the basis for registration, it cannot be deemed that the person has the external appearance that helps the other party to the claim for recovery of inheritance to be a property heir, unless the reason for registration is stated in the sale (see Supreme Court

In light of the above legal principles, as long as the reason for the registration of transfer of ownership in this case was indicated by sale on May 21, 1980 in the registry concerning the real estate of this case, the plaintiffs' claim for the cancellation of the remaining shares except for the defendant's share of inheritance among the shares of Nonparty 1 concerning the real estate of this case does not constitute

The ground of appeal pointing out the lower judgment on a different premise is not acceptable.

4. Regarding ground of appeal No. 2

A. A. A title inheritor who becomes the other party to a claim for recovery of inheritance refers to a person who possesses all or part of inherited property by referring to the person who has the appearance of relianceing the person who is a property inheritor even though there is no legitimate right of inheritance, or who occupies the whole or part of inherited property by referring to the person who has held the right of inheritance of other inheritors, as well as a case where the registration of ownership transfer is made in the sole name concerning the inherited property by referring to the fact that only one of the co-inheritors has the right of inheritance, and even if one of them has concealed the fact and still remains in the position of co-inheritors, it may constitute a title inheritor. However, if the registration based on such inheritance is made without the intention of the title holder and without the intention of referring to the title holder, the above registered titleholder shall not be deemed a title inheritor as referred to in the lawsuit for recovery of inheritance (see, e.g., Supreme Court Decisions 93Da2490, Mar. 11, 1994; 208Da1686, Jan. 6, 1997).

B. According to the reasoning of the judgment below, on February 1965 and on March 3, 1965, the court below submitted to the Seoul Family Court a report on the renunciation of inheritance to Nonparty 3's inherited property and accepted it by the above court. The court below acknowledged the fact that the registration of inheritance was completed in accordance with the inheritance shares in the name of Nonparty 1, etc. who renounced inheritance to the real estate before the division of this case, and determined that the non-party 1 who was not the heir from the beginning because he renounced inheritance to the non-party 3's inherited property and registered the inheritance in its name. However, the judgment of the court below is difficult to accept in light of the above legal principles.

In other words, even according to the facts acknowledged by the court below, the non-party 1, etc. was extended on December 9, 1964 to March 11, 1965 by the Seoul Family Court 64Do1445, which was the deceased non-party 3. The non-party 1, etc. submitted a report on the renunciation of inheritance to the non-party 4 and 5, who was the non-party 3's minor child, to the defendant on February 15, 1965, after the Seoul Family Court 65Do45 decided on February 15, 1965 on the appointment of the family council members and the convening decision of the family council. Accordingly, the non-party 4 and 5's legal representative, who was the non-party 4 and 5's legal representative, reported on the renunciation of inheritance on March 9, 1965, and the non-party 1, 67Do101, who was the non-party 1's sole real estate inheritance report to the non-party 1, which was accepted.

Such Nonparty 1’s reversal of the previous intention without any justifiable reason on May 22, 1973, thereby denying the validity of the renunciation of inheritance led by himself/herself, and completing the registration of inheritance on the above real estate with the intention of asserting his/her right to inheritance as co-inheritors. Therefore, it is difficult to conclude that the registration of inheritance on the above real estate was made by his/her own will solely on the ground that the registration of joint inheritance including the inheritance shares in the above real estate was completed, without examining the circumstances where the above registration of inheritance was made or the applicant, etc.

Therefore, the court below should have examined the circumstances where the registration of inheritance in the name of the non-party 1 was completed on the real estate before the division of this case, and then should have determined whether the above registration of inheritance was actually made by the non-party 1's will. However, without proceeding to the deliberation on such circumstances, the mere fact that the registration of inheritance in the name of the non-party 1 was completed on the real estate above but the registration of inheritance in the name of the non-party 1 was made on the real estate above was considered as a reference heir to the pertinent shares. Such judgment of the court below is erroneous in the misapprehension of legal principles

5. Conclusion

Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below 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 Kim Nung-hwan (Presiding Justice)