[1] In a case where one of the co-inheritors has completed the registration of ownership transfer of inherited real estate due to the division of agreement, whether a lawsuit claiming the cancellation of registration of ownership transfer seeking by another co-inheritors on the ground that the division of agreement becomes null and void constitutes a lawsuit claiming the recovery of inheritance (affirmative)

[2] In a case where Gap claims for the cancellation of 1/2 shares completed in the name of Eul among co-inheritors Eul by asserting that he/she acquired the ownership of the real estate solely by inheritance due to an agreement division, the case holding that the court below erred by misapprehending legal principles in rejecting Eul's main defense on the ground that the exclusion period has expired as a lawsuit for inheritance recovery, and thus, the exclusion period has expired.

[1] Article 999 of the Civil Code / [2] Article 999 of the Civil Code

[1] Supreme Court Decision 2007Da17482 Decided March 10, 201 (Gong2011Sang, 699)

Plaintiff (Law Firm Neba Bus, Attorneys Kim Young-chul, Counsel for plaintiff-appellant)

Defendant (Law Firm Gangnam LLC, Attorneys Gu classroom-dong et al., Counsel for defendant-appellant)

Suwon District Court Decision 2012Na42755 decided August 13, 2013

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

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

1. Relevant legal principles

In cases where a person asserts, on the premise that he/she is a true inheritor, the attribution of property rights, such as ownership or ownership due to inheritance, and claims the cancellation of registration, etc. of real estate, which is inherited property, from a reference inheritor or a third party who acquired a right to inherited property or entered into a new interest from a reference inheritor, such claim constitutes a lawsuit for recovery of inheritance as stipulated in Article 99 of the Civil Act, regardless of the cause of the claim, provided that the ownership or ownership belongs to the inheritance.

In addition, a named inheritor who becomes the other party to a claim for recovery of inheritance refers to a person who occupies all or part of the inherited property by referring to a person who has any external appearance that helps the person to believe that he/she is an inheritor, even though he/she does not have a legitimate right to inheritance. Therefore, in cases where registration of ownership transfer has been made in the name of one co-inheritors with respect to real estate that is an inherited property, unless there are special circumstances, such as that such registration has been made regardless of the intention of the registered titleholder, the registered titleholder is a person who has an external appearance that

Therefore, in a case where one of the co-inheritors has completed the registration of ownership transfer of inherited real estate due to an inheritance by agreement division, such agreement division is deemed null and void as it was made without the consent of other co-inheritors (see Supreme Court Decision 2007Da17482, Mar. 10, 201, etc.).

2. The judgment of the court below

The lower court presumed that the instant lawsuit seeking cancellation of the registration in the name of the Defendant, which was made on the ground of inheritance with respect to the share of 1/2 of the instant real estate among co-inheritors by asserting that the Plaintiff solely acquired the ownership of the instant real estate due to the division of agreement, constitutes a lawsuit seeking inheritance recovery under Article 999 of the Civil Act, barring any special circumstance.

In addition, the court below also stated the following circumstances as stated in its holding, namely, ① the agreement on division of the instant real estate and other inherited real estate, which appears to have been prepared by the staff of a certified judicial scrivener in charge of each inheritance registration affairs; ② each part (No. 2-1, 2, and 3) prepared by the defendant includes not only the content of ownership of inherited property, but also the content of the ownership ownership ownership ownership of inherited property as a substitute for each part of each part (No. 2-1, 2, and 3) but also specify the sharing ratio; ③ the remaining inherited real estate except the instant real estate belongs to the owner in accordance with the agreement and joint document, and the defendant also raises an objection to such ownership; ④ The court below determined that it is difficult to find a reasonable ground to view that the Plaintiff did not have any content different from the original content of the Plaintiff’s written agreement on division of inherited property in accordance with the agreement and the agreement on division of inherited property by the co-inheritors, as it did not constitute the Defendant’s original co-inheritors’s agreement on division of inherited property.

3. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below as to whether the defendant's reference successor constitutes the defendant's reference successor for the following reasons in light of the above legal principles

First, it cannot be ruled out that the court below's agreement or metature, which was based on the judgment, was not a written agreement on the division of the inherited property, submitted in the completion of the registration of this case, and merely has the character as a draft, but merely has the character as a draft, in the process of completing the registration of this case after the completion of the agreement and the joint execution of the joint agreement and the joint execution of the joint execution of the registration of this case, there was an agreement between the plaintiff and the defendant, who is a direct interested party, about the inheritance of the real property of this case, or that the defendant requested the registration of this case with any content different from the initial agreement or the joint execution of the joint judicial scrivener. Meanwhile, since the non-party 1 and the non-party 2 completed the division of the inherited property to exclude the real property of this case from the inherited property, there was no direct interest in the property of this case.

Second, in the registration of inheritance, since the indication of shares is based on the statutory shares of inheritance, in case where an applicant applies for registration of transfer of shares in a percentage different from the statutory shares of inheritance, it is necessary to submit a document certifying the fact that the shares in the statutory shares of inheritance, such as a written agreement on division of inherited property, are changed to the shares of the applicant's claim, in addition to the document certifying the inheritance, and in case where such written application is not submitted or the written application is different from the above written contents, the application for registration cannot be dismissed (see Supreme Court Order 90Ma772, Oct. 29, 190, etc.).

Third, as long as a registration of ownership transfer has been made on the register of real estate, it shall be presumed that the procedure and cause for the transfer have been justified, and the procedure and cause for the transfer shall be proved by the party who asserts unjust enrichment (see, e.g., Supreme Court Decision 2002Da46256, Feb. 28, 2003). Unlike other inherited property, the defendant's explanation of the reasons attributable to ownership different from the initial agreement on the division of inherited property only to the real estate of this case is reasonable or there is no submission of any supporting material, it is not sufficient to presume that the registration in the name of the defendant was made by the defendant's will.

Fourth, the Plaintiff asserted that the registration of this case was made by mistake due to the number of a certified judicial scrivener staff members in charge of the affairs of registration regardless of the Defendant’s will, and that there was no 20 years after the date of registration, nor did the trace of endeavoring to correct the error in the litigation of this case appear in the record. On the other hand, the Defendant consistently asserted that the real estate of this case was duly registered as the original and the Defendant’s co-ownership, and actively contests the Plaintiff’s ownership of the first and

Ultimately, the circumstances cited by the lower court are insufficient or inappropriate to recognize that the instant registration was made irrespective of the Defendant’s will, which is the registered titleholder. Nevertheless, the lower court rejected the Defendant’s principal safety defense that the instant lawsuit was filed more than ten years after the date on which the instant lawsuit was committed against the Defendant’s intent and thus unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the title trustee, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)