[1] The validity of the act of designating the method of dividing the inherited property of the inheritee without the method of will (negative)

[2] Requirements for division of inherited property through consultation

[3] The procedure for agreement on division of inherited property between a person with parental authority who is a co-inheritors and minor children

[1] Although the inheritee may set the method of division of the inherited property by will, the designation of the method of division by the act of birth has no effect, so the inheritor is not bound by the will of the inheritee.

[2] Division of inherited property by agreement shall be effective only with the consent of all co-inheritors, and if there is no consent of some co-inheritors or there is any defect in the power of representation in such declaration of intention, division shall be null and void.

[3] The agreement on the division of jointly inherited property with the content of determining the scope of the ownership of inherited property constitutes an act contrary to the interest and interest under Article 921 of the Civil Code, which is likely to cause conflict between inheritors due to the objective nature of the act, and thus, in case where the agreement on the division of inherited property is reached between the person with parental authority who is a co-inheritors and the minor, each special representative must appoint a special representative for each minor, and consult on the division of inherited property on behalf of each minor, and if the person with parental authority agreed on the division of inherited property as a minor's legal representative, it is against Article 921 of the Civil Code, and the agreement on division of inherited property

[1] Article 1012 of the Civil Act / [2] Article 1013 of the Civil Act / [3] Article 921 of the Civil Act

[2] [3] Supreme Court Decision 85Meu80 delivered on March 10, 1987 (Gong1987, 645) / [2] Supreme Court Decision 93Da54736 delivered on April 7, 1995 (Gong1995Sang, 1810) / [3] Supreme Court Decision 92Da54524 delivered on April 13, 1993 (Gong193Sang, 1392), Supreme Court Decision 94Da6680 delivered on September 9, 1994 (Gong194Ha, 2611)

Plaintiff

Defendant

Gwangju District Court Decision 2000Na6694 delivered on April 26, 2001

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

1. According to the reasoning of the judgment below, since the defendant reported marriage on June 13, 1975 with the non-party 1 to the non-party 3, the plaintiff reported marriage on October 30, 1980 with the non-party 2, all of the children of the above non-party 1, and the non-party 2 died on April 28, 198, and the non-party 1 died on December 22, 1995, the court below rejected the plaintiff's claim that the non-party 1 transferred the real property of this case to the non-party 3, the non-party 3, the non-party 4, the non-party 1, the non-party 5, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 9, the non-party 1, the non-party 1, the non-party 1, the non-party 2, the plaintiff's share transfer of the real property of this case to the plaintiff.

2. However, the lower court’s determination that the instant agreement was based on the deceased Nonparty 1’s act of designating a method of division of inherited property, and its substance constitutes an agreement division of inherited property is doubtful in that it is as follows.

A. First, the court below judged that the deceased non-party 1 donated the real estate in this case to the plaintiff designated the method of division of the inherited property, but the deceased may determine the method of division of the inherited property by will, but the deceased's designation of the method of division by the act of pre-sale is null and void and thus the deceased's heir is not bound by the deceased's will (see Article 1012 of the Civil Act). Thus, even if the deceased non-party 1 designated the method of division of the inherited property to his heir, the deceased non-party 1 does not have any obligation to follow the method of division designated by the deceased non-party 1, as long as the designation is not recognized as having been made by the method of will. Thus, it cannot be concluded that the agreement in this case is based on the deceased's will, or that its substance constitutes an agreement of inheritance.

B. Division of inherited property through consultation shall be effective with the consent of all co-inheritors, and if there is no consent of some of co-inheritors or there is a defect in the power of representation in the expression of such intent, division shall be null and void (see, e.g., Supreme Court Decisions 85Meu80, Mar. 10, 1987; 93Da54736, Apr. 7, 1995). As to inherited property, a joint agreement on division of inherited property with the scope of ownership constitutes an act contrary to the interest and interest under Article 921 of the Civil Act, which is likely to conflict between successors due to the objective nature of the act, and thus, if each special agent appointed a special representative for each minor and made a consultation on division of inherited property on behalf of each minor, if a person with parental authority has reached a consultation on division of inherited property as a minor, it is in violation of Article 921 of the Civil Act, and thus, the agreement on division of inherited property established by such act is null and void unless there is legitimate ratification.

However, in light of the above legal principles, in the case where it is evident that the agreement of this case was made among the other co-inheritors at the time of the agreement of this case that the above non-party 3 (1980), non-party 4 (1982), and the non-party 5 (1987), who is a minor, was in a record, the agreement of this case is required by all co-inheritors in that procedure to constitute a consultation division of inherited property according to the decision of the court below, and each special representative appointed by the court, who is not the plaintiff who is not a person with parental authority of the above inheritor, should have held a consultation on the division of inherited property on behalf of the minor. However, even according to the facts acknowledged by the court below, the agreement of this case was made only between the original and the defendant, and it did not go through the above procedure or there was no legitimate ratification, it cannot be concluded that the agreement of this case between the original and the defendant

C. Nevertheless, the judgment of the court below that the agreement of this case constitutes a consultation division of inherited property is erroneous in the misapprehension of legal principles as to the method of division of inherited property by the decedent and the method of consultation on division of inherited property. Thus, the ground of appeal pointing this out is with merit.

3. 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 Son Ji-yol (Presiding Justice)