[1] The standard for determining whether to recognize the contributory portion pursuant to Article 1008-2 of the Civil Act for a spouse of an inheritee who had liveded with the inheritee for a long time and provided nursing to the inheritee, and the degree thereof

[2] The case holding that the court below rejected the claim for determination of entitlement to a contributory portion on the ground that it is insufficient to recognize that the heir Byung et al., born between the decedent Gap and the former wife Eul claimed a division of inherited property against the deceased worker Eul et al., and that the heir Byung et al., born with Gap et al., were living together with Gap for a long time until the death of Gap et al., and provided care to Byung et al., for the determination of entitlement to a contributory portion, the court below rejected the claim for determination of entitlement to a contributory portion on the ground that the court below did not err by misapprehending the legal principles as to the requirements for recognition of entitlement to a contributory portion as provided in Article 1008-2 of the Civil Act, on the grounds that it is difficult to

[1] [Majority Opinion] In a case where a spouse was living together with an inheritee for a long time and provided nursing, the Family Court should determine whether to recognize a contributory portion and the degree thereof by comprehensively considering the following: (a) whether the spouse’s living together and nursing care exceeds the first obligation to support the inheritee; (b) the time, method and degree of living together and nursing; and (c) the person liable to bear the cost of living together and nursing care; (d) the size of inherited property and the amount of special benefit to the spouse; and (e) the number of co-inheritors and the spouse’s statutory share of inheritance; and (e) whether there is a need to adjust the spouse’s share of inheritance in order to promote substantive equity among co-inheritors; and (e)

A spouse’s act of an intangible contribution by living together and nursing for a long period may be actively considered as one of the elements recognizing a contributory portion: Provided, That in order to recognize such a spouse’s entitlement to a contributory portion, the need to adjust the spouse’s share of inheritance should be recognized in order to promote the substantial equity among co-inheritors by comprehensively taking

[Dissenting Opinion by Justice Jo Hee-de] Where a spouse of an inheritee supports an inheritee by living together with the inheritee for a considerable period of time, such support by the spouse constitutes “special support” as one of the requirements for recognition of the contributory portion under Article 1008-2(1) of the Civil Act, barring any special circumstance, the spouse should be recognized as contributory portion.

[2] The case holding that the judgment below rejected the claim for determination of the entitlement to a contributory portion on the ground that it is insufficient to recognize that the heir Byung et al., born between the decedent Gap and the former wife Eul filed a claim for the division of inherited property against the heir Eul et al., who was the latter wife Eul and the deceased's children, and that the court below rejected the claim for determination of the entitlement to a contributory portion on the ground that it is not erroneous in the misapprehension of legal principles as to the requirements for recognition of entitlement to a contributory portion under Article 1008-2 of the Civil Act, on the ground that it is difficult to recognize that Gap et al. was able to provide care to the extent that the contributory portion was recognized, but it was not a health condition for providing care beyond ordinary support to the extent that the contributory portion was recognized, and it was merely a husband's performance of duty of support as a husband and wife, thereby making a special support to the extent that it should promote substantial equity among co-inheritors and especially contributed to the maintenance and increase of Gap's property

[1] Articles 826(1), 108, 108-2(1), (2), and (4), 1009, and 1013(2) of the Civil Act; Article 2(1)2(b) of the Family Litigation Act; Article 112(2) of the Rules on Family Litigation / [2] Articles 826(1), 1008, 108-2(1), (2), and (4), 109, and 1013(2) of the Civil Act; Article 2(1)2(b) of the Family Litigation Act; Article 112(2) of the Rules on Family Litigation

[1] Supreme Court en banc Order 94Da16571 Decided March 10, 1995 (Gong1995Sang, 1576), Supreme Court Order 95Do30, 31 dated July 10, 1996 (Gong1996Ha, 2495), Supreme Court Order 97Meu513, 520, 97Hun-Ba12 Decided December 8, 1998 (Gong1999, 123), Supreme Court Order 201Du176, 177 decided December 13, 201, 201, Supreme Court Order 201Hun-Ba205 decided December 27, 201, Supreme Court Order 201Hun-Ba205 decided December 27, 2012; Supreme Court Order 201Da96315 Decided December 31, 2013

Claimant (Counter-Appellant) 1 and 8 others (Attorney Jeong-ju, Counsel for the plaintiff-appellant)

Other (Re-Appellant) 1 and 2 others (Law Firm Nab Sharing et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2013BB12, 13 dated January 8, 2014

All re-appeals are dismissed. All of the re-appeals are dismissed. Of the costs of re-appeals, the part arising from the request for resumption of a lawsuit is borne by the claimant (the counter-Appellant) and by the other party (the counter-Appellant) respectively.

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

1. Whether to recognize a contributory portion due to a spouse’s living together and nursing for a considerable period (Ground of reappeal No. 3);

A. Contributory portion system

The contributory portion scheme was newly established by the amendment of the Civil Act by Act No. 4199 on January 13, 1990, and came into force on January 1, 1991 (hereinafter “former Civil Act”). Article 1008-2(1) of the former Civil Act provides that “When there is a person among co-inheritors who has specially contributed to the maintenance or increase of the property of the inheritee (including a person who has specially supported the inheritee),” the requirement of the foregoing provision is amended by Act No. 7427 on March 31, 2005, and provides that “When there is a person who specially supported the inheritee or specially contributed to the maintenance or increase of the property of the inheritee for a considerable period of time among co-inheritors, the amended Civil Act shall be deemed to be “when there is a person who has specially supported the inheritee or contributed to the maintenance or increase of the property of the inheritee” (hereinafter “former Civil Act amended in 2005”).

B. Supreme Court precedents as to whether to recognize the contributory portion arising from a spouse’s support

The Supreme Court consistently held that the entitlement to a contributory portion system prescribed by Article 1008-2 of the Civil Act is to promote the substantial equity among co-inheritors by considering it in the calculation of the entitlement to a contributory portion in cases where the co-inheritors specially supported the inheritee or specially contributed to the maintenance and increase of the inheritee’s property. Therefore, in order to recognize the entitlement to a contributory portion, the Supreme Court has consistently held that it is necessary to adjust the entitlement to a contributory portion among co-inheritors to the extent that there is a need to do so for

In other words, since Supreme Court Order 95S30, 31 dated July 10, 1996 ruled to the effect that “special contribution” is required, the above legal doctrine was confirmed in Supreme Court Order 201S1S176, and 177 dated December 13, 201; Supreme Court Order 2010S7 dated October 12, 2012; Supreme Court Order 2012S156, 157 dated November 25, 2014; Supreme Court Order 2013S195 Decided March 5, 2015; Supreme Court Order 2014S206, and 207 Decided July 17, 2015; Supreme Court Order 2014S207 Decided July 108-2, 2015; and thus, the above legal doctrine was maintained, regardless of the amendment of Article 108-2(1) of the Civil Act.

On the other hand, Supreme Court precedents did not change the recognition of the contributory portion according to the “Status in Status” of co-inheritors who claimed the determination of the contributory portion.

Supreme Court Order 2010S7 Decided October 12, 2012 and Supreme Court Order 2013SSS112, and 113 Decided November 25, 2014 determined as follows: (a) Supreme Court Decision 97Meu513, 520, 97S12 Decided December 8, 1998 recognized a spouse’s claim for determination of entitlement to a contributory portion; (b) Supreme Court Order 201S176, 177 Decided December 13, 201, rejected a spouse’s claim for determination of entitlement to a contributory portion; (c) Supreme Court Order 2010SS28, 299 and Supreme Court Order 201SS156, Nov. 25, 2014; and (d) Decision 2010SS28, May 30, 2013; and (d) Decision 2017SS156, Nov. 25, 2015.

C. Legal basis of Supreme Court precedents

In the case of a spouse, there is a view that the entitlement to a contributory portion ought to be recognized solely on the sole basis of the circumstance that the spouse provided care to an inheritee while living together with the inheritee in a considerable period of time, and accordingly, the Supreme Court’s precedents should be maintained in accordance with the legal principles and practical reasoning.

(1) Interpretation of the provisions of the Civil Act

(A) Contents of Article 1008-2 of the Civil Act

Article 108-2 of the Civil Act provides that a contributory portion shall be determined by taking into account the timing, method, and degree of contribution, the amount of inherited property, and other circumstances, in a case where the co-inheritors fail to reach an agreement among themselves, among co-inheritors prescribed in paragraph (1) as a requirement for a special support for the inheritee or a special contribution to the maintenance and increase of the inheritee’s property. Furthermore, Article 108-2 of the Civil Act provides that a contributory portion shall not exceed the amount calculated by deducting the value of legacy from the value of property of the inheritee at the

(B) Determination based on the adjudication on determination of the contributory portion and family non-litigation procedures

Meanwhile, a claim for determination of a contributory portion may be made in cases where a claim for division of inherited property (Article 1013(2) of the Civil Act), a claim for payment of equivalent value to the inherited property (Article 1014 of the Civil Act) is made (Article 1008-2(4) of the Civil Act). A judgment on determination of a contributory portion ought to be jointly deliberated and tried in an adjudication, such as division of inherited property as to the same inherited property (Article 11

All of the adjudication cases on division of inherited property and the adjudication on determination of contributory portion are family non-litigation cases [Article 2(1)2(b)(9), and 10) of the Family Litigation Act]. In light of the unique characteristics that the result of the adjudication on division of inherited property exceeds the legal rights and property relationship and affects family community, a family court should make the adjudication on division of inherited property based on family non-litigation procedures where the family court’s guardian discretion is recognized, given that it is necessary to make the decision on the division of inherited property more specifically by taking account of various circumstances into account, without being informed of the parties’ assertion (see Constitutional Court en banc Decision 2015Hun-Ba24, Apr. 27, 2017). The same applies to the adjudication on contributory portion to be deliberated together in the adjudication on division of inherited property. Accordingly, in the adjudication on determination of contributory portion, the family court shall determine whether the support or contributory contribution claimed by the claimant at the guardian at the discretion of guardianship should be modified and the degree thereof should be determined.

If a spouse, among co-inheritors, was living together with an inheritee in the line of duty and provided nursing for an inheritee, and a contributory portion ought to be recognized without considering any other circumstances as to support for such specific type of support, it would result in setting an exception without any legal basis, contrary to the Civil Act and the Family Litigation Act, which provides that a contributory portion shall be determined based on a guardian discretion in consideration of all the circumstances under the Family Litigation Act and the Family Litigation Act.

(C) Interpretation of the provisions concerning Category E non-litigation cases, including Article 1008-2(1) and (2) of the Civil Act

Article 108-2(1) of the Civil Act provides the requirements for recognition of entitlement to a contributory portion and Article 1008-2(2) provides that “The family court shall determine the entitlement to a contributory portion.” The interpretation of the foregoing provision ought to reflect the characteristics of a family non-litigation case that the family court ought to exercise guardianship discretion and make a decision jointly with the intent to determine the entitlement to a contributory portion. Therefore, as seen earlier, Article 1008-2(1) and (2) of the Civil Act should be construed to the effect that the family court should determine whether to

Article 839-2(1) of the Civil Act, which provides for a disposition on division of property (Article 2(1)2(b) and (4) of the Family Litigation Act, provides that one spouse may claim division of property against the other spouse, and Article 839-2(2) of the Civil Act provides that the amount and method of division shall be determined in consideration of the amount of property achieved by both parties’ cooperation and other circumstances. In addition, Article 2(1)2(b) and (2) of the Family Litigation Act provides that the Family Court shall determine whether to recognize division and the degree of division. In addition, a disposition on support among relatives [Article 2(1)2(b) of the Family Litigation Act, Article 974 and Article 977 of the Civil Act], a disposition on bringing-up of a child arising from divorce and a change thereof [Article 2(1)2(b) of the Family Litigation Act, Article 37-2(3)3(b) of the Civil Act, Article 87-7(2) of the Civil Act.

(2) Relationship between husband and wife’s duty to support and requirements for recognition of the contributory portion

The relationship between a spouse's act of support, such as living together and nursing, and a contributory portion, shall be determined in harmony with the civil law system on support between husband and wife and relatives.

Husband and wife shall live together, and support and cooperate with each other (main sentence of Article 826(1) of the Civil Act). Support and cooperation between husband and wife means that the husband and wife maintains the other spouse’s living at the same level as maintaining one’s own living (see Supreme Court Order 2014S26, Aug. 25, 2017). The mutual support duty between husband and wife is the primary support duty that aims to ensure that the other spouse is the essential duty of marital relationship and the living of the person to be supported is guaranteed to the same degree as that of the person to be supported as that of the person to be supported, so that they can maintain their community life (see Supreme Court Decision 201Da96932, Dec. 27, 201

On the other hand, the duty of support to an adult child under Article 974 subparag. 1 and Article 975 of the Civil Act as a lineal blood relative for his/her parents is the secondary duty of support to support his/her own life, only when a person to receive support is unable to maintain his/her livelihood due to his/her own ability or labor, on the premise that the person to receive support has enough time for living while living a life corresponding to his/

Supreme Court Order 95S30, 31 dated July 10, 1996 ruled that, in light of the following: (a) the claimant’s claim for the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement to the entitlement would mean a special support.

The Civil Act imposes a higher level of duty to live together and support on the spouse. On the other hand, as seen earlier, the aspect of the spouse’s duty to live and support while maintaining marriage with the inheritee includes part of the spouse’s statutory share of inheritance prescribed by adding 50 percent of the co-inheritors’s share of inheritance. As such, the ordinary support of the spouse cannot be deemed as a ground for re-revision of the added statutory share of inheritance.

Nevertheless, if a spouse recognizes a contributory portion only for reasons of a long-term living together and nursing for a spouse, it would be inconsistent with the provisions of the Civil Act that provide a mutual support duty between husband and wife as the primary support duty.

(3) The equity between inheritance system and co-inheritors

The Civil Act provides that an inheritor shall succeed to the comprehensive rights and obligations regarding the property of the inheritee (Article 1005) (Article 100, Articles 1003, and 1009). The Civil Act aims at equity among co-inheritors by equal inheritance (amended by the Civil Act on January 13, 1990), while the spouse’s share of inheritance shall be determined by adding 50 percent of the share of inheritance of co-inheritors to the inheritance of the inheritee, taking into account the circumstances in which the spouse is obliged to perform the duty of living together and to support during marriage with the inheritee while his/her spouse is maintained (Article 109(2)). This is an important legislative decision.

Meanwhile, the contributory portion is a system that revises statutory inheritance according to the circumstances recognized in a specific case. If a co-inheritors absolutely recognizes the contributory portion for a specific act of an inheritor having a specific status among co-inheritors, then the same result as changing statutory inheritance by interpretation would be the same as changing statutory inheritance by interpretation, and the legislative intent of the Civil Act

(4) Comparing the special benefit system and the burden of support expenses

The existence of special benefits and entitlement to a contributory portion cannot be considered when determining the entitlement to a contributory portion in a trial in an inherited property division case as an element of correcting both statutory entitlement to a contributory portion.

Article 108 of the Civil Act provides that, with respect to special profits, in cases where there is a person who received a gift or testamentary gift from an inheritee among co-inheritors who received any property from the inheritee among the co-inheritors, if the gift property does not reach his/her share of inheritance, the inheritance is deemed to exist within the extent of the insufficient portion. This purport is to consider in calculating the specific share of inheritance by treating the gift property as the advance payment of the share of inheritance in order to ensure the fairness among the co-inheritors if there is a special beneficiary who received a donation of property or testamentary gift from the inheritee among the co-inheritors (see Supreme Court Decisions 94Da16571, Mar. 10, 1995; 2014S206, Jul. 17, 2015).

In the adjudication on division of inherited property, the specific amount of inheritance by inheritor shall be calculated through the calculation process by reflecting both the property of the inheritee at the time of inheritance commencement, the special benefit amount and the contributory portion.

If an ancestor has already donated or bequeathed a reasonable property to his/her spouse and becomes a special beneficiary of excess amount, and the spouse recognizes the contributory portion for the reason of long-term living together and care for the spouse, it would seriously prejudice the fairness with the remaining co-inheritors.

In addition, if the spouse lives together with the inheritee for a long time and provided nursing care, and if the expenses required therefor have been spent from the inheritee’s property or other co-inheritors have borne the contributory portion, it would be a problem that would compromise the equity with the remaining co-inheritors, as above, if the contributory portion is recognized without considering

(5) Whether it is necessary to revise the legal doctrine following the amendment of the Civil Act in 2005

The provision on entitlement to contributory portion under the amended Civil Act separates the requirement of “special support” under the former Civil Act from “a person who has made a special contribution to the maintenance or increase of an inheritee’s property,” and is evaluated to have embodied the form of “special support” into “special support by living together, providing nursing for a considerable period of time.” The purpose of the amendment is to: (a) the former Civil Act enters into force in 1991; (b) thus, equal inheritance is realized; and (c) the system for entitlement to contributory portion was newly established to prevent infringement of substantial equity; (d) as a result of the implementation of the system on entitlement to contributory portion, the provision on entitlement to contributory portion was deemed insufficient to induce labor-friendliness; and (b) to allow a person who supported an inheritee while living together for a considerable period of time to be recognized as entitlement to contributory portion (see Constitutional Court en banc Decision 2010Hun

In light of the content and purport of the amendment, it is difficult to view that the requirements for recognition of entitlement to contributory portion have been fundamentally changed due to the amendment of the Civil Act. Unlike the previous ones, there is no reason or ground to regard one spouse among co-inheritors as the requirements for recognition of entitlement to contributory portion only for one co-inheritors, who can be assessed as the performance of obligation

(6) Relationship between the necessity for the protection of spouse

In our society, there is an assertion that the legal portion of inheritance alone is insufficient to protect a spouse, reflecting the fact that it is insufficient to protect the spouse, using the entitlement to a contributory portion system.Although there are parts to be able to raise an issue, it is difficult to accept as an interpretation theory of the current law, since it is difficult to accept as an interpretation theory of the current law, since it is difficult to recognize the entitlement to a contributory portion for almost every spouse by almost little requirements for the entitlement

It is pointed out that there is an extremely small number of co-inheritors (in particular, where there are many children who are the first-class inheritors) a spouse's share of inheritance is extremely small, there is a claim that the spouse's requirements for recognition of the spouse's share of contributory portion should be mitigated

The decision of the statutory share of the contributory portion is an important legislative decision and the problem that the spouse's share of the contributory portion is low in the case of a large number of children is an inevitable result arising from the legislation that adopts the system of equal shares among co-inheritors. Meanwhile, as the number of children is reduced due to nuclear familyization, the spouse's share of the contributory portion is increased in accordance with the trend of decrease in the number of children, taking into account these social changes, the realistic necessity for relaxing the requirements for recognition of the contributory portion

(7) Sub-committee

In a case where a spouse liveds with an inheritee for a long time and provided nursing for the inheritee, the Family Court should determine whether to recognize the contributory portion and the degree of the contributory portion by comprehensively taking into account all the circumstances such as the period, method, and degree of living together and nursing as well as the timing, method, and degree of living together and nursing, the person liable for the cost of living and nursing, the size of inherited property, the amount of special benefits to the spouse, the number of other co-inheritors, and the legal share of inheritance among co-inheritors in order to promote the substantial equity among co-inheritors, and should determine whether to recognize the contributory portion and the degree thereof.

D. Positive consideration of the act of contribution to intangible non-property

As seen above, even though the spouse of the inheritee was living together with the inheritee for a long time and provided care to the inheritee, it is not possible to recognize the contributory portion for his spouse, it may be possible to improve the practice of adjudication on the contributory portion in the direction of actively considering one of the elements recognizing the contributory portion.

In addition to the nuclearization of our society, if the health condition of the elderly becomes worse due to the increase of life expectancy, it may be placed in a state of receiving nursing from others, and the period may be long-term to the extent that the Civil Act did not have scheduled. However, the public assistance or social welfare in our society has not yet been sufficient to solve these problems. When an ancestor lives for a long time during the old age, it is likely that the decedent’s living together with him/her and providing nursing will eventually be the spouse’s share.

In the meantime, the Family Court needs to carefully consider whether the act of an intangible, non-property contribution with respect to the remaining living together, nursing and supporting the contributory portion was under-assessment, with a great weight of the latter among the requirements for recognition of the contributory portion and the “act of contributing to the maintenance and increase of property” and the “act of contributing to the maintenance and increase of property.”

A spouse’s act of an intangible contribution under a long-term living together and nursing may be actively considered as one of the elements recognizing a contributory portion. However, in order to recognize such a spouse’s entitlement to a contributory portion, the need to adjust the spouse’s share of contributory portion should be recognized in order to promote the substantial equity among co-inheritors by comprehensively taking into account

E. Determination of the instant case

(1) Review of the reasoning of the lower judgment and the record reveals the following facts.

(A) On October 1, 1940, non-applicant 1 (the decedents 1918 and 1916) married with non-applicant 2 (the decedents 1916) (the decedents 1918 and 1916) and made nine children among the petitioners (the respondents hereinafter referred to as the "applicants"). In other words, the decedents 1 (the respondents 194 and 194) met the other party (the respondents hereinafter referred to as the "the other party") at the beginning of 1971, the decedents 2 and the other party 3 were their children. The non-applicant 2 died on July 26, 1984, and on May 16, 1987, the decedent and the other party 1 reported marriage. In other words, the period of marriage between the decedents 1 and the inheritees 1 and the period of de facto marriage is shorter than the period of marriage 20 years.

(B) On March 1, 2008, Nonparty 1 lived together in a house owned by the inheritee until the inheritee died. The same applies to Nonparty 1, who had no particular occupation for the period of nursing the inheritee, and Nonparty 2 and Nonparty 3. The other party appears to have been able to depend on the income of the inheritee and actually have been appropriated from the inheritee’s income or property. On the contrary, the materials showing that the other party, regardless of the inheritee, has appropriated his/her income from his/her own economic activity, was not submitted up to the lower court. The amount of the special benefit of Nonparty 1 is the largest amount equivalent to approximately 30% of the total amount of the special benefit, and both Nonparty 2 and Nonparty 3 are the special beneficiaries. On the other hand, six remaining petitioners except the claimant 3, Claimant 5, and Claimant 9, did not receive any special benefit from the inheritee at all.

(C) From March 2003 to March 2008, the decedent had received outpatients from several hospitals, and had been hospitalized over 10 times. The other party 1 provided nursing for the decedents for most of the period. However, the other party 1 could not provide nursing for the decedents around that time after undergoing cancer surgery on January 2008.

(D) The statutory share of the other party 1’s inheritance constitutes 3/25 to 12/25. The statutory share of the claimant’s inheritance constitutes 2/25 to 8/25, respectively.

(2) The lower court rejected Nonparty 1’s claim for determination on the contributory portion on the ground that it is insufficient to recognize that the inheritee provided special support to the inheritee or contributed specially to the maintenance and increase of the inheritee’s property by modifying the statutory inheritance portion beyond the ordinary level expected as the wife, although it could be recognized that Nonparty 1 provided nursing to the inheritee when the inheritee was sick, it did not have a health condition that would exceed the ordinary level of support to the extent that contributory portion was recognized, and it was merely a marital spouse who performed a duty of support and was merely obligated to provide support.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the requirements for recognition of entitlement to contributory portion as prescribed in Article 1008-2 of the Civil Act, thereby failing to exhaust all necessary deliberations

(3) In addition, the lower court rejected the allegation regarding the contributory portion by Nonparty 2 and Nonparty 3 on the grounds that it is difficult to view that there was an act of contribution to the extent to recognize the contributory portion with respect to Nonparty 2, and there is no evidence to support the other party 3 as to the contributory portion. In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the contributory portion, which led to the

2. Calculation of special benefits of the spouse (Grounds of reappeal Nos. 1 and 5).

In light of equity among co-inheritors, etc., the lower court determined that it is reasonable to calculate the market value at the time of the commencement of inheritance of the building site and the building on the ground of the above △△△ Ri, which is located in the ○○○○○○○○○, Young-gun, Chungcheongnam-do, and the building site and the building on the site of the above △△△△△△ Ri, which are located in the △△△△△△△△△,

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the calculation of the spouse’s special benefits, contrary to what is alleged in the grounds of reappeal

3. The period that serves as the basis for calculating the special benefits (ground of reappeal No. 2).

As of the commencement of inheritance, the lower court assessed the special benefits by reflecting the right of transmission and collection at the forest value of the forests and fields that other parties 2 and 3 gain.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the relevant legal doctrine, as otherwise alleged in the grounds of reappeal.

4. Whether a consultation on division of inherited property is recognized (Ground of reappeal No. 4).

The lower court, on the premise that an implied agreement on the division of inherited property with respect to the real estate listed in [Attachment 1] Nos. 3 and 4 of the lower judgment cannot be recognized, included the said real estate in the inherited property

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal principles on partial division consultation, special benefits, and the subject matter of inherited property, contrary to what is alleged in the grounds of reappeal, thereby affecting the judgment

5. As to the claimant's request for taking over the lawsuit

On October 21, 2014, the claimant asserted that, on August 8, 2014, the other party 2 and the other party 3 succeeded to the rights and obligations of the other party 1 in connection with the instant lawsuit, the claimant filed an application for re-appeal after the lapse of the period for re-appealing the grounds for re-appeal. However, in light of the progress of the proceedings for re-appeal trial, the counter party 2 and the other party 3 do not need to take over the lawsuit of the other party 1, and thus, the above application for re-appeal is rejected.

6. Conclusion

Therefore, all reappeals are dismissed, and all of them are dismissed. Of the costs of reappeals, the part arising from the request for resumption of a lawsuit among the costs of reappeals shall be borne by the appellant, and the part arising from the reappeals shall be borne by the other party. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Jo Hee-de as to the spouse’s existence of a contributory portion

7. Dissenting Opinion by Justice Jo Hee-de as to whether to recognize a spouse’s entitlement to contributory portion for a considerable period of time

A. The gist of the Majority Opinion on this part is as follows. In other words, where a spouse of an inheritee supported an inheritee by means of providing nursing with an inheritee for a long time, whether to recognize the spouse’s entitlement to a contributory portion and the degree thereof should be determined by comprehensively considering the following: (a) whether the family court’s spouse’s living together and nursing exceeds the first obligation to support the married couple; (b) the time, method, and degree of living and nursing; (c) the person liable for support expenses pursuant to living together and nursing; (d) the size of inherited property and the amount of special benefits to the spouse; and (e) the number of other co-inheritors and the statutory share of inheritance among co-inheritors, the need to adjust the spouse’s share of contributory portion in order to promote substantive equity among co-inheritors. However, although the spouse’s act of intangible contributing to living and nursing for a long time, the need to adjust the spouse’s share of contributory portion may be recognized in order to promote substantive equity among co-inheritors by comprehensively taking into account all the aforementioned circumstances into consideration.

However, we cannot agree with the Majority Opinion.

B. In a case where a spouse of an inheritee supported the inheritee by living together with the inheritee for a considerable period of time, such a spouse’s act constitutes “special support”, which is one of the requirements for recognition of the contributory portion as prescribed by Article 1008-2(1) of the Civil Act, and barring any special circumstance, a spouse ought to be recognized the contributory portion. The reasons are as follows.

(1) Article 1008-2(1) of the Civil Act provides that “If co-inheritors have specially supported an inheritee by living together, nursing, or any other means for a considerable period of time, the entitlement to a contributory portion shall be recognized.”

As seen in the Majority Opinion, “special support” was amended by Act No. 7427 of March 31, 2005 by Article 1008-2 of the Civil Act, unlike the previous one, was separated from the requirements for recognition of a contributory portion, and the form of such act was embodied as “the act of living, nursing and nursing for a considerable period of time”. The act of living, nursing and nursing under Article 1008-2(1) of the amended Civil Act can be deemed as a representative act of support that can be performed by the spouse. No text of the above provision is found to the purport that any act of living, nursing and nursing by the spouse would be excluded within the scope of recognition of a contributory portion. The draft of the Ministry of Justice amendment at the first time added the contributory portion of inheritance by newly establishing the inherited portion under Article 1008-3 of the Civil Act with the inheritee for a considerable period of time, but excluded from the category of the inheritor’s spouse, but did not provide special support from the act of living and nursing for a considerable period of time.

As such, with the amendment of Article 1008-2(1) of the Civil Act, the legislative intent of actively recognizing a spouse’s entitlement to a contributory portion was clearly clear, and the act of providing nursing with an inheritee for a considerable period of time by itself constitutes an act of special support. As such, recognizing a contributory portion to a spouse who supported an inheritee by such method is an interpretation consistent with the language and text of Article 1008-2(1) of the amended Civil Act and the legislative intent.

(2) Article 1008-2(1) of the amended Civil Act explicitly states special support activities separately from the act of property contribution, so it accords with the purport of the amendment that it does not require a causal relationship with the maintenance and increase of the property of the inheritee as to special support activities. Recognition of the fact of living together and nursing, which is a specific method of supporting the act of support as prescribed by Article 1008-2(1) of the Civil Act, is sufficient to include the concept of living together and nursing regardless of whether the person who provided the support bears the expenses. If another co-inheritors bears the expenses of supporting the inheritee, it shall be deemed that the other co-inheritors separately assessed the contribution of the co-inheritors, and it shall not be deemed that the circumstance as to who is the person liable for the support expense would have an impact on recognizing the spouse’s contributory portion.

The Majority Opinion purports to determine whether to recognize a contributory portion by taking account of property circumstances, such as who is the person liable for the cost of support for a spouse who has performed an act of support under a living together or nursing for a considerable period of time, and the amount of special benefits of the spouse. As such, the Majority Opinion still holds that whether the act of support has contributed to the maintenance and increase of the property of the inheritee as at the time of the enforcement of the Civil Act prior to the amendment is the requirement to recognize a contributory

(3) Article 108-2(1) of the Civil Act provides for the requirements for recognition of entitlement to a contributory portion, and Article 1008-2(2) provides for the method of determining entitlement to a contributory portion and the reason for such consideration if entitlement to a contributory portion is recognized. In other words, Article 108-2(1) provides for the matter as to whether to recognize a contributory portion per se, and Article 100

However, the Majority Opinion argues that an intangible act of contribution under a spouse’s living together and nursing for a long period may be actively considered as one of the elements recognizing a contributory portion, and that the contributory portion itself may not be admitted by comprehensively taking into account various circumstances into account.

If a spouse’s act of supporting a contributory portion constitutes a special support as prescribed by Article 1008-2(1) of the Civil Act, it can be understood that the spouse’s act of supporting a contributory portion satisfies the requirements for recognition of a contributory portion. The issue of which degree of contributory portion for such a spouse is whether to grant a contributory portion to such a spouse is determined by taking account of the time, method and degree of contribution, the amount of inherited property, and other circumstances at the request of the contributory spouse when it cannot be agreed or consulted by co-inheritors pursuant to Article 108-2(2) of the same Act. If a spouse’s act of supporting a contributory portion constitutes a special support as prescribed by Article 1008-2(1) of the Civil Act, the degree of recognition of a contributory portion ought to be determined by taking into account

The adjustment of the share of special beneficiary under Article 1008 of the Civil Act and the share of contributory portion under Article 1008-2 of the Civil Act are common points to promote fairness among co-inheritors. However, the former treats special profits as the advance payment of the share of inheritance and treat the latter as the share that can be additionally acquired in addition to the original share of inheritance. Thus, the interpretation of the adjustment of share of special beneficiary under Article 1008 of the Civil Act does not affect the interpretation of the requirements for recognition of the share of contributory portion under Article 1008-2 of the Civil Act.

The majority opinion is inconsistent with the systematic interpretation of Article 1008-2(1) and (2) of the Civil Act.

(4) Under Article 826(1) of the Civil Act, both spouses are obliged to live together and provide support among themselves. However, recognition of a contributory portion for a spouse who faithfully performs the duty to live together and provide support with the spouse who faithfully performs the duty to live together and provide support is not incompatible. This is also confirmed by the legislator’s intent revealed in the amendment process under Article 1008-2 of the Civil Act. In a case where it is difficult to deem that a spouse’s act of support through living and nursing for a considerable period of time exceeds the scope of the ordinary performance of the duty to support between the couple, it shall be deemed as a special support act under Article 1008-2(1) of the Civil Act. On the ground that a couple has a duty to live together and provide support under the Civil Act, it is not concluded that there is no logic that the Majority Opinion, based on this premise, cannot be deemed as a contribution act without disregarding property circumstances, with respect to the spouse who performed the act of living and

In order to recognize a contributory portion, it should be recognized that there is a need to adjust the contributory portion among co-inheritors to recognize the fact that the inheritee specially supported the inheritee to the extent that it is necessary to adjust the contributory portion in order to promote the substantial equity among them (see Supreme Court Order 2014Do206, 207, Jul. 17, 2015). In a case where the spouse of the inheritee supported the inheritee by living together with the inheritee for a considerable period of time, it would exceed the degree of contribution normally expected in comparison with those of co-inheritors, and thus, it is necessary to adjust the spouse’s share of contributory portion in order to promote the substantial equity among co-inheritors. In other words, it is unreasonable to consider the contributory portion to recognize a contributory portion for a spouse who supported the spouse who supported the inheritee by living together and providing nursing for a considerable period of time by strictly interpreting the requirements for “special gender of support” as a result of equally treating the spouse who actively

(5) The status of the spouse and other co-inheritors can be reasonably adjusted by actively recognizing the contributory portion of the spouse’s contributory portion by promoting the liquidation of marital joint property and the equity among co-inheritors.

Since the common property of both spouses is a property jointly formed by the inheritee and the spouse, liquidation shall be conducted not only at the time of divorce but also at the time of the death of one spouse. The affirmative recognition of a spouse’s entitlement to a contributory portion is meaningful to liquidate such common property of both spouses. In addition, our Civil Act has reduced the spouse’s share of inheritance depending on the increase in the number of children, and it is reasonable to actively recognize a spouse’s entitlement to a contributory portion that has faithfully lived and provided nursing with the spouse in terms of the allocation of the share of inheritance.

In light of the reality of our society, it is desirable to actively recognize the contributory portion for a spouse when the spouse of an inheritee living together with the inheritee for a considerable period of time and nurseing the inheritee. The aging of the population is rapidly developing, and the issue of care for the aged may arise when the aged’s parents and children reside separately due to nuclear familyization. If one spouse of an aged couple is sick by one spouse, and the child is living separately from his/her parents, nursing for the victimized spouse is likely to involve a mental and physical skin as well as economic expenditure. In such a case, the spouse’s act of living together and nursing may have a significant meaning that reduces the burden to not only the spouse under administration but also to his/her children.

Therefore, it is reasonable to actively recognize the entitlement to a contributory portion for a spouse who supported an inheritee through living together and nursing for a considerable period of time in light of the reality of our society where the problem of care for the aged is becoming an issue of care for the aged, and the relationship with the child also accords with equity.

(6) The Majority Opinion argues that an intangible act of contribution under a spouse’s living together and nursing for a long time may be considered as one of the elements recognizing a contributory portion, but it is concluded that even if a spouse is a spouse living together and provided with nursing for a long time by comprehensively taking into account various circumstances, such as the subject to the burden of support costs, the amount of special benefits, and the statutory inheritance portion, the contributory portion may not be recognized. The Majority Opinion argues that the amendment of Article 1008-2(1) of the Civil Act, which seeks to actively recognize a contributory portion for a spouse who supported an inheritee through living together and nursing for a considerable period of time, would be able to achieve the effectiveness of the amended Civil Act in order to realize the legal doctrine regarding the

C. Examining the following circumstances revealed in the foregoing factual basis in light of such legal doctrine, the act of support by Nonparty 1 while living together with the inheritee for a considerable period of time may be deemed as an act of special support under Article 1008-2(1) of the Civil Act. Moreover, there is sufficient room to deem that there is a need to adjust the share of inheritance by recognizing the contributory portion with respect to Nonparty 1.

(1) The decedent and the other spouse, except for the period during which they maintained a de facto marital relationship, were living together for a long period exceeding 20 years.

(2) The other party 1, as a 1944 student, provided nursing for the inheritee with more than 80 for five years up to the 60 middle class.

(3) In particular, since 2007, the inheritee’s disease aggravated, and it seems that Nonparty 1 made a sacrifice more than those of the inheritee’s children while nursing the inheritee.

D. Nevertheless, the lower court rejected Nonparty 1’s claim for determination on the contributory portion on the ground that it is insufficient to recognize that the inheritee provided special support to the inheritee or contributed specially to the maintenance and increase of the inheritee’s property by modifying the statutory inheritance portion beyond the ordinary level expected by Nonparty 1 as the wife, although it could be recognized that Nonparty 1 provided nursing to the inheritee when the inheritee was sick, it did not have a health condition that would be able to provide nursing beyond the ordinary level of support to the extent that contributory portion was recognized, and it was merely a marital couple who performed a duty of support, and it was merely insufficient to recognize that Nonparty 1 provided

The lower court erred by misapprehending the legal doctrine on the requirements for recognition of entitlement to contributory portion under Article 1008-2 of the Civil Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the judgment.

Therefore, the order of the court below should be reversed, and the case should be remanded to the court below for a new trial and determination.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

Justices Jo Hee-de (Presiding Justice)