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(영문) 대법원 2011. 11. 24. 선고 2011다64331 판결
[부당이득금][미간행]
Main Issues

[1] The meaning of not knowing the fact that the inheritance obligation exceeds the inherited property under Article 1019(3) of the Civil Act by gross negligence, and the burden of proof on it (=he inheritor)

[2] In a case where the qualified acceptance was made three months after Gap et al. became aware of the commencement of inheritance, the case holding that the court below erred in the misapprehension of legal principles as to Article 1019 (3) of the Civil Code, on the ground that, in light of all the circumstances, it is highly probable that Gap et al. knew or took full care of the fact that the inherited debt exceeds inherited property, and that Gap et al.'s claim for the qualified acceptance was made.

[Reference Provisions]

[1] Articles 1019(1) and (3), and 1026 subparag. 2 of the Civil Act / [2] Articles 1019(1) and (3), and 1026 subparag. 2 of the Civil Act

Reference Cases

[1] Supreme Court Decision 2010Da7904 decided Jun. 10, 2010 (Gong2010Ha, 1360)

Plaintiff-Appellant

Plaintiff

Defendant (Appointedd Party)-Appellee

Defendant

Judgment of the lower court

Jeju District Court Decision 2010Na2480 decided June 15, 2011

Text

The part of the judgment of the court below against the defendant (appointed party) and the appointed party 2 shall be reversed, and that part of the case shall be remanded to the Jeju District Court Panel Division. The remaining appeal shall be dismissed.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal on the disposal of inherited property and the non-existence of the inventory of inherited property

According to the reasoning of the judgment below, on November 27, 2009, the deceased non-party (hereinafter referred to as the "the deceased") died from patch infection infection at Jeju University Hospital on the basis of its adopted evidence, and the defendant (appointed party) who is the inheritor of the deceased and the designated parties (hereinafter referred to as "the defendant for convenience") raise an objection on the grounds of medical malpractice, etc., the Jeju University Hospital paid KRW 50 million on December 11, 2009 on the condition that the Defendants did not raise a civil or criminal objection. In light of the amount of consolation money and payment terms, it is highly probable to view that consolation money was paid from the compensation difference for mental distress caused by the death of the deceased as inherited property, and there is no other evidence to recognize that it was inherited property. Thus, the Defendants are considered to have accepted the Plaintiff's simple assertion pursuant to Article 1026 subparagraph 1 of the Civil Act.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the law of logic and experience and the principle of free evaluation of evidence.

In addition, as long as consolation money cannot be seen as inherited property, it cannot be viewed as a simple approval pursuant to Article 1026 subparagraph 3 of the Civil Act on the ground that it did not enter it in the list of property unless it is viewed as inherited property. Therefore, the judgment below did not err by misapprehending the legal principles as to Article 1026 of the Civil Act, as otherwise alleged in

2. As to the ground of appeal on qualified acceptance after the statutory period expired

The first sentence of Article 1019(1) of the Civil Act provides that "a successor may make an absolute acceptance, a qualified acceptance, or a renunciation within three months from the date on which he/she becomes aware of the commencement of inheritance," and Article 1019(3) of the Civil Act provides that "a successor, notwithstanding the provisions of paragraph (1), may make a qualified acceptance within three months from the date on which he/she becomes aware of the fact that his/her inherited obligation exceeds his/her inherited property without gross negligence, where he/she has made an absolute acceptance (including cases where he/she is deemed to have made an absolute acceptance under subparagraphs 1 and 2 of Article 1026) without knowing the fact that his/her inherited obligation exceeds his/her inherited property, a qualified acceptance may be made within three months from the date on which he/she becomes aware of such fact."

Article 1019(3) of the Civil Act is a provision newly established after the Constitutional Court's decision on inconsistency with the Constitution of Article 1026 subparag. 2 of the Civil Act. Article 1019(3) of the same Act provides that "no knowledge of the fact that the inheritance obligation exceeds the inherited property is not known by his/her gross negligence by failing to inform the inheritor of the fact that the inheritance obligation would exceed the inherited property if his/her heir paid a full attention." The burden of proving that the heir was unaware of the fact that the inheritance obligation exceeds the inherited property without gross negligence is an inheritor (see Supreme Court Decision 2010Da7904, Jun. 10, 201).

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance, and recognized the fact that the Defendants received a decision to accept each report of the inheritance limit approval on April 29, 2010, May 13, 2010, and May 31, 2010, and determined that the Defendants’ responsibilities are limited to the property inherited from the deceased.

However, the Defendants are deemed to have qualified acceptance three months after the commencement of inheritance was known. Accordingly, according to the legal principles as seen earlier, the Defendants’ failure to know the fact that the inheritance obligation exceeds inherited property within the period under Article 1019(1) of the Civil Act without gross negligence can be recognized as valid qualified acceptance.

First of all, the judgment of the court below on the Appointor 3, 4, 5, 6, and 7 is acceptable in light of the fact that the Appointor 3, 4, 5, 6, and 7 had long been living far away from the deceased, and that the plaintiff did not make specific arguments as to his bad faith or gross negligence in this case.

However, it is difficult to accept the judgment of the court below with respect to Defendant (Appointed Party) and 2. If it did not appear to have been aware of the fact that the inheritance obligation exceeds inherited property within the period prescribed in Article 1019(1) of the Civil Act without any gross negligence, the following circumstances revealed by the records. In other words, the instant obligation owed by the deceased against the Plaintiff is based on the Jeju District Court Decision 9Da5414 decided Nov. 2, 1999. The foregoing judgment ruled that the Plaintiff and the Defendant (Appointed Party) sought reimbursement of the amount of KRW 35 million jointly and severally against the deceased and the Defendant (Appointed Party), but the Defendant (Appointed Party) did not know of the existence of the inherited property of the Plaintiff at the time of commencement of inheritance, and it is highly probable that the Defendants knew of the inheritance obligation of the deceased at the time of commencement of inheritance or had been able to have known that the inheritance obligation exceeded the period prescribed in Article 1019(1) of the Civil Act was within 20 years before and after the commencement of inheritance (the designated Party).

Nevertheless, even though the plaintiff specifically disputed the defendant (appointed party) and 2's bad faith or gross negligence, the court below erred by misapprehending the legal principles on Article 1019 (3) of the Civil Code, which affected the conclusion of the judgment, which affected the conclusion of the judgment, on the ground that the court below accepted the claim for qualified acceptance by the defendant (Appointed party) and 2.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant (appointed party) and the appointed party 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Selections: Omitted

Justices Jeon Soo-ahn (Presiding Justice)

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