[1] Whether Article 440 of the Civil Act that recognizes the effect of interrupting prescription against the principal obligor as to the surety can also be applied to the prescription period after the interruption of prescription (affirmative)

[2] Whether a decision of provisional seizure against a deceased person as an obligor can be recognized as a ground for interruption of extinctive prescription (affirmative)

[1] Article 165 of the Civil Act provides that, once a final judgment becomes final and conclusive, there is no possibility that evidence for repayment will become unclear, so it is unnecessary to take short-term extinctive prescription, and even in this case, there is no need to take several procedures for interruption. Thus, legislative resolution is required. Thus, concerns such as uncertainty of evidence about repayment of a surety obligation by a final and conclusive judgment on the principal obligation are lost and strong evidence power is given to a obligor. In particular, once a final and conclusive judgment is rendered on commercial claims, the purport of the commercial prescription system, such as prompt resolution of commercial transactions, does not need to be maintained. The guaranteed obligation is a system with the purpose of guaranteeing the performance of the principal obligation. Article 440 of the Civil Act provides that the guaranteed obligation should not be extinguished before the extinctive prescription expires. Thus, if a surety obtains the effect of extinctive prescription on the principal obligation and a subsequent act for the interruption or confirmation of prescription is not affected by the principal obligor, it is reasonable to interpret the surety’s intent to maintain the same form and effect as the surety’s performance of the principal obligation after extinctive prescription expires.

[2] Even if an application for provisional attachment against a deceased person is illegal and the provisional attachment decision was made in accordance with the application, the decision shall be deemed null and void, and it shall not be deemed that the decision shall have an effect on his heir. However, in light of the fact that our Civil Code stipulates provisional attachment as one of the grounds for suspending the extinctive prescription as one of the grounds for suspending the extinctive prescription, it is not because the prohibition of the disposal of provisional attachment is not effective but because the obligee's intent to realize the right was objective as an application for provisional attachment, it means that the provisional attachment order against a deceased person does not have an effect of prohibiting the disposal, which is the original effect of provisional attachment, and it shall not be deemed that there was no application for provisional attachment and its decision itself, and thus, it shall not be deemed that the validity of the decision for provisional attachment is denied as a ground for suspending the extinctive prescription. Therefore, even if

[1] Articles 165 and 440 of the Civil Act, Article 64 of the Commercial Act / [2] Article 168 of the Civil Act

[1] Supreme Court Decision 86Meu1569 delivered on November 25, 1986 (Gong1987, 101) / [2] Supreme Court Decision 82Meu884 delivered on October 26, 1982 (Gong1983, 64) Supreme Court Decision 89Da9 delivered on March 29, 191 (Gong1991, 1283), Supreme Court Decision 2000Da30578 delivered on April 26, 2002 (Gong2002, 1239)

Lee Jong-chul et al. (Law Firm Gyeong & Kim, Attorneys Kim Jin-jin, Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Han-chul, Counsel for defendant-appellant)

Seoul District Court Decision 2002Gahap31839, 45210 delivered on July 25, 2003

April 8, 2004

1. The part concerning a counterclaim among the judgment of the court of first instance shall be modified as follows:

A. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 82,703,746 won each of them and 23,303,427 won per annum from April 21, 2002 to May 31, 2003, and 20% per annum from June 1, 2003 to the date of full payment.

B. The defendant-Counterclaim plaintiff's remaining counterclaims are dismissed.

2. The plaintiff (Counterclaim defendant)'s appeal against the principal lawsuit is dismissed.

3. The costs of lawsuit shall be ten minutes through the first, second, second, principal, and counterclaim, and the nine minutes shall be borne by the plaintiff (the counterclaim defendant) and the remainder shall be borne by the defendant (the counterclaim plaintiff).

4.1. A. The provisional execution may be effected.

1. Purport of claim

In this lawsuit: ① It is confirmed that there is no inheritance obligation of the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) based on each joint and several guarantee contract on June 13, 1991 and October 4, 1991 between the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) and the deceased (Counterclaim Defendant; hereinafter referred to as “Plaintiff”). ② The Defendant pays to the Plaintiffs 63,041,982 won, each of them from November 12, 1992 to 18,80 won, each of them from January 14, 1993 to the delivery date of a duplicate of each complaint of this case, and 5% per annum from the following day to the delivery date of a duplicate of each complaint of this case from January 14, 1993 to the delivery date of a copy of each complaint of this case.

Counterclaim: The plaintiffs shall pay to the defendant 413,518,730 won and 116,517,139 won among them, 19% per annum from April 21, 2002 to the service date of a duplicate of the counterclaim of this case, and 25% per annum from the following day to the day of full payment.

2. Purport of appeal

Plaintiffs: (a) Revoking the first instance judgment; (b) dismiss the Defendant’s counterclaim; and (c) dismiss the same judgment as the purport of the claim in the first lawsuit.

Pursuant to the judgment of the court of first instance, the part against the defendant among the judgment of the court of first instance shall be revoked, and the judgment as per Disposition 1-A

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the respective descriptions of Gap evidence 1 through 4, Gap evidence 5-1, 2, Gap evidence 6, 7, Gap evidence 16, 21, Eul evidence 12-1 and 5, and the whole purport of arguments:

A. On June 13, 1991, the Defendant concluded a guarantee insurance contract for payment guarantee (hereinafter referred to as the "guarantee insurance contract") with the Korea Technology Finance Corporation, the insurance amount of the insurance amount of the Korea Technology Finance Corporation, 430,800,000 won between the Defendant and the Korea Technology Finance Corporation (hereinafter referred to as the "MMI"), and concluded a guarantee insurance contract for payment guarantee (hereinafter referred to as the "YI insurance contract") with each of the insured on October 4, 1991 by setting the amount of the insurance amount as KRW 5,060,000 and KRW 4,400,000 each, respectively.

B. On June 13, 191, the representative director of the sewage water delivery and Lee Jong-sung, the father of the Lee Jong-sung, were jointly and severally guaranteed the obligation of indemnity for sewage production under the first guarantee insurance contract (hereinafter referred to as the "first joint and several guarantee contract") against the defendant on June 13, 191. On the same day, Lee Sung-dong, Seongdong-gu, Seoul as a secured claim for indemnity for sewage production, concluded a mortgage contract on the amount of indemnity for sewage production between the defendant and the defendant as a secured claim, and completed the mortgage contract on the amount of 218-6 large 149.9 square meters (hereinafter referred to as the "mortgage contract in this case"). The Seoul District Court Branch of the Seoul District Court as of June 13, 191 as of June 13, 1991.

C. On October 4, 1991, on behalf of the defendant, on the part of the defendant on the part of the defendant, the number of gambling, the husband of the Lee Gung-sung who was living together with this fact, was jointly and severally guaranteed the indemnity liability of sewage product under the second guarantee insurance contract (hereinafter referred to as the "second joint and several guarantee contract").

D. The Defendant paid a total of KRW 431,821,449 on November 14, 1991 to the insured in accordance with each of the above guarantee insurance contracts. On December 16, 191, the Defendant applied for a voluntary auction on the real estate stated in the above paragraph (b) and received dividends from the auction court for the amount of KRW 315,209,910 on December 315, 1992, and KRW 94,400 on January 14, 1993, total of KRW 315,304,310 on November 14, 1993.

E. Lee Jong-sung died on September 13, 1993, and five heirs are the plaintiffs and five heirs. Among inherited property, there are 1/3 shares of 1/3 of the 464m2 in Gangnam-gu Seoul Metropolitan Government, Gangnam-gu, Seoul, and 831m2 in Yacheon-gun, Chungcheongnam-gun, Chungcheongnam-do (hereinafter referred to as "affirmative property").

2. Summary of the parties' arguments

The plaintiffs asserted that the first joint and several guarantee contract is null and void as it is concluded in the state of the capacity to perform their duties. Since the second joint and several guarantee contract was concluded in the name of the reason that Park real value was not granted the right of representation from the reason that it was null and void, there is no liability for indemnity of the reason that the contract of this case was concluded in the name of the reason that it was null and void. In addition, even if the liability for indemnity exists, the obligation for indemnity was extinguished by the completion of prescription, and that the obligation for indemnity inherited by the plaintiffs was limited to the extent of inherited property by the qualified acceptance of inherited property, and that there was no obligation of indemnity of the plaintiffs under each joint and several guarantee contract of this case, and that the contract of this case was concluded in the name of the reason that Park real value was arbitrarily and without being granted the right of representation from the reason that it was null and void, the defendant is liable to return the amount of KRW 315,304,310 which was distributed through a voluntary auction

In regard to this, the defendant, ① each of the joint and several surety contracts of this case and mortgage contract of this case were concluded by free decision-making, and the second joint and several surety contracts of this case were lawfully concluded by the number of gambling, which is the representative of Lee Jong-sung. Accordingly, each of them was effective, and accordingly, the plaintiffs succeeded to the obligation of indemnity of Lee Jong-sung. ② The defendant's action of prohibition of indemnity against Lee Jong-sung and the provisional seizure order of this case was suspended by the defendant around June 25, 1996, ② the defendant's action of prohibition of indemnity against Lee Jong-sung and the provisional seizure order of this case as of July 2000, and ③ the plaintiffs cannot be deemed to fall under the successors protected by the transitional measures of Paragraph 3 of the Addenda to the amended Civil Act, and thus, the plaintiffs' qualified acceptance cannot be effective, so the plaintiffs' claim against the plaintiffs for the payment of the remainder of indemnity that the defendant had not been paid

Therefore, the issues of this case are as follows: ① the validity of each joint and several guarantee contract of this case and mortgage contract of this case; ② the expiration of the extinctive prescription of the claim for reimbursement of this case; ③ the validity of qualified acceptance; ③ the validity of the qualified acceptance is to first examine ①, ② after reviewing the part concerning the counterclaim, ② after examining the principal claim and the validity of the counterclaim.

3. Whether each contract of joint and several sureties and mortgage contract of this case were effective

A. As to the first joint and several guarantee contract

The plaintiffs asserts that the first joint and several guarantee agreement, which was entered into in the dementia state, is null and void as an act by a person without mental capacity.

In light of the above facts, it is difficult to believe that Gap evidence No. 18 was stated, and ① evidence No. 12, No. 13-1, and No. 19 are written at the time when 10 years or more have passed since 1991 from the date of conclusion of the first joint and several guarantee contract, and ② evidence No. 14 and No. 15 are written depending on a vague observation and memory as non-professionals, ② The above evidence No. 14 and No. 15 is merely a record on the fact that the 199 was suffering from brain marization and received hospital treatment thereafter, and there is no other evidence to find that the above evidence alone is insufficient to acknowledge that the above evidence No. 12, No. 14 and No. 192, No. 97, which was the maximum number of patients at the time of conclusion of the first joint and several guarantee contract.

B. Regarding the mortgage contract of this case and the registration of establishment of mortgage

The plaintiffs asserted that the contract to establish a mortgage of this case and the registration of establishment of a mortgage of this case are null and void, since Park Jong-sung had concluded the contract to establish a mortgage of this case at will without obtaining the power of representation from Lee Jong-sung in the status of performing the duties of the Lee

On the other hand, there is no evidence to prove that the reason for the establishment of the mortgage contract of this case was the state of office ability at the time of the conclusion of the mortgage contract of this case. As seen earlier, it is difficult to believe that the statement of evidence No. 19, which seems to be consistent with the plaintiffs' argument that Park Jong-chul had concluded the mortgage contract of this case on behalf of the Lee Jong-sung, and there is no other evidence to prove otherwise. Rather, in full view of the entries and the whole purport of the arguments in the evidence No. 3-1 and No. 3, it is reasonable to view that the reason for the establishment of the mortgage contract of this case was directly signed and sealed by the document of this case and the written consent to the security, and as long as the registration of establishment of the mortgage of this case was completed, it is presumed that the registration was duly made, and therefore

C. As to the second joint guarantee contract

(1) Determination as to the assertion of unauthorized Representation

The plaintiffs asserts that the second joint and several guarantee agreement, which was concluded at will without obtaining the power of representation for the conclusion of the contract from the reason that it was unfair, is invalid as an act of unauthorized representation.

Therefore, in light of the overall purport of the arguments, this paper examines whether this misunderstanding has already concluded the first joint guarantee contract of this case, which covers the guarantee obligation of sewage acid at the time of the conclusion of the second joint guarantee contract, the amount of the guarantee obligation of the second joint guarantee contract of this case (the amount of insurance coverage of 5,060,000 won and 4,400,000 won) is not much, the representative director of the second joint guarantee contract of this case is separated from the Lee Jong-soo-soo-soo-I, and the representative director of the second joint guarantee contract of this case has no dispute between the parties, and the whole purport of the arguments is as follows: Gap-I, 2, 4, 5-1, 2, 5-2, and 16-I, this misunderstanding-I, as a whole, has already been concluded at the time of the conclusion of the second joint guarantee contract of this case, and there is no reason to recognize the relationship between the parties to this case's right of representation and the second joint guarantee.

(2) The meaning of signing and sealing in the insurance subscription form

The plaintiffs stated "I fully understand and sign and seal all the provisions of this Agreement relating to the contents of guarantee insurance contract based on the guarantee insurance contract for installment sale in front," in the evidence No. 1 and No. 2 (each subscription form for insurance). Thus, in order to establish the joint and several surety contract in force, I have signed and sealed it directly, but the contract for the second joint and several surety of this case should have signed and sealed it, which is the agent, and thus null and void. However, even in the case of the joint and several surety contract to be concluded by the agent, if I request the signature of the principal itself, it would result in denying the conclusion of guarantee contract by proxy. Thus, the above provision is merely a provision that the party who concludes the contract ( regardless of the principal, agent, etc.) sufficiently understand and conclude the contents of the contract, and it cannot be deemed that the principal's own signature is a requisite for the validity of the joint and several surety contract. Therefore, the plaintiffs'

D. Sub-committee

Therefore, the plaintiffs' assertion that each joint and several guarantee contract of this case, mortgage contract, and establishment registration of a mortgage is null and void is without merit.

4. Whether the period of prescription for liability for indemnity expires;

A. Facts of recognition

The following facts may be acknowledged in full view of the purport of the entire pleadings in each of the statements in Gap 7, 11, 4, and 13-2, although there is no dispute between the parties, or in full view of the purport of the whole pleadings.

(1) On June 25, 1996, the defendant filed a lawsuit seeking payment of the remainder of the claim for reimbursement from the above voluntary auction among the claim for reimbursement (hereinafter referred to as "the claim for reimbursement in this case") with the Seoul District Court Decision 96Da136682, which filed a lawsuit against sewage, water acid, emulation, and emulation (hereinafter referred to as "the claim for reimbursement in this case"), and the judgment was rendered in favor of all on October 16 of the same year, and the above judgment became final and conclusive on November 14 of the same year.

(2) After that, around July 200, the defendant filed an application for provisional seizure of active property of this reason with the Seoul District Court Decision 2000Kadan73868 (hereinafter referred to as the "decision of provisional seizure of this case") as the claim for indemnity against this reason, and completed the provisional seizure registration on July 18, 200 after receiving the decision of provisional seizure on July 18, 200 (hereinafter referred to as the "decision of provisional seizure of this case").

(3) Meanwhile, on June 29, 2001, the Lee Jong-chul, the successor of Lee Jong-sung, reported the death of this person.

(b) Markets:

(1) The defendant's claim for indemnity against the Lee Jong-sung was due on November 14, 1991 that the defendant paid the insurance money to the insured, and the above claim for indemnity is established due to the defendant's commercial activity, which is a financial institution, and the extinctive prescription is five years. The defendant's counterclaim in this case is obvious in the record that it was filed on July 16, 202, which was five years after the lapse of such period. Thus, barring any special circumstance, it shall be deemed that the defendant's claim for indemnity against Lee Jong-sung has expired by prescription, barring any special circumstance.

(2) Interruption of prescription due to the "litigation for indemnity of this case"

On June 25, 1996, before five years have passed from the due date of the obligation for indemnity against the wastewater water delivery, the defendant filed a lawsuit for indemnity amount and won the judgment, which became final and conclusive, and thus, the statute of limitations has been interrupted. Since the interruption of the statute of limitations against the wastewater delivery, which is the principal debtor, also becomes effective as well as as as to the reason that it is the guarantor (Article 40 of the Civil Act, and the lawsuit for indemnity amount was filed about the reason that it had already died at the time of the filing of the lawsuit, and thus, the judgment of the defendant as to the reason for nullification in the lawsuit for indemnity amount was null and void). Accordingly, the statute of limitations on the claim against the plaintiffs who succeeded to the guaranteed obligation upon the death of the specificity shall also be deemed to have been interrupted on June 25, 1996.

However, in cases where a claim becomes final and conclusive by a judgment, etc. between a creditor and a principal debtor and the joint and several sureties, it is problematic whether the period of extinctive prescription of a joint and several sureties's joint and several sureties still follows the previous period of prescription. Accordingly, Supreme Court Decision 86Meu1569 Decided November 25, 1986 held that even if a guaranteed obligation is subordinate to the principal obligation, the guaranteed obligation has the nature of independent obligation separate from the principal obligation and the interruption of prescription of a principal obligor under Article 440 of the Civil Act is effective against the guarantor, but this provision is a special provision for protecting creditors or securing claims, rather than based on the nature of the guaranteed obligation, and this provision is a special provision for protecting creditors or securing claims, if a cause of extinctive prescription has occurred against the principal obligor, and at the same time, it does not affect the guarantor at the same time, and even if the prescription period has been interrupted by the judgment, etc. between the creditor and the principal obligor, the extinctive prescription period under the previous period of joint and several sureties.

① However, Article 165 of the Civil Act provides that, once a final judgment becomes final and conclusive, there is no possibility that evidence for repayment will become unclear, so it is unnecessary to take short-term extinctive prescription, and even in this case, there is no need to take a short-term extinctive prescription if it takes several procedures for interruption. Thus, legislative resolution is intended. As such, concerns such as uncertainty of evidence for repayment of a surety obligation by a final and conclusive judgment on the principal obligation are lost and strong evidentiary power is given to the obligor. In particular, once a final and conclusive judgment is rendered on commercial claims, there is no need to maintain the purport of the extinctive prescription system, i.e., prompt resolution of commercial transactions. (2) Article 440 of the Civil Act provides that a surety’s guarantee obligation is to secure security by ensuring that a surety’s guarantee obligation does not extinguish before the extinctive prescription expires, and thus, it is reasonable to interpret that the surety’s surety’s surety’s surety’s guarantee obligation is also identical to that of the principal obligor after the interruption of extinctive prescription.

Therefore, the extinctive prescription of the Defendant’s claim for indemnity against the Plaintiffs was interrupted as a lawsuit for indemnity of this case, and ten years have not passed since November 14, 1996, which was the date when the lawsuit for indemnity of this case became final and conclusive, it cannot be deemed that the claim for indemnity of this case expired due to the completion of prescription, and therefore, the Plaintiffs’ assertion is without merit.

As to this, the Plaintiffs asserted that, in the event of the death of the guarantor, inheritance of the guarantor is a guarantee obligation and does not inherit the status of the guarantor. Thus, even if an obligee files a lawsuit against the principal obligor after the death of the guarantor, there is no guarantor subject to the effect of interrupting prescription, and thus, there is no room for the interruption of prescription with the inheritor. However, in light of the purport of Article 440 of the Civil Act as seen earlier, the Plaintiffs’ assertion is without merit so long as the inheritor comprehensively succeeds to the rights and obligations of the inheritee.

(3) Interruption of prescription and violation of the good faith principle due to the "decision of provisional seizure of this case"

Even if the period of extinctive prescription of the above claim for indemnity after the interruption of prescription due to the confirmation of the lawsuit seeking reimbursement of this case is considered five years as the purport of the above Supreme Court Decision, the plaintiffs' assertion is without merit for the following reasons.

In the judgment of this case, the defendant applied for provisional attachment against active property of this reason and completed the registration after receiving the decision of this case from July 14, 1996, which was before the lapse of five years from November 14, 1996, which was the date when the extinctive prescription had run again due to the confirmation of the judgment of this case, as the claim for the indemnity of this case. As to this, the plaintiffs asserted that the provisional attachment of this case is null and void as the provisional attachment of this case against the deceased person at the time of the application, and therefore, the interruption of prescription is null and void. The defendant asserted that the provisional attachment of this case is null and void, even though the plaintiffs did not file a death report or inheritance registration, and even if the defendant could not know the death of this reason, the provisional attachment of this case against the deceased person

In light of the fact that the application for provisional seizure against a deceased person as the debtor is illegal and the decision of provisional seizure was made in accordance with the application, the decision shall be deemed null and void, and its effect shall not affect the inheritor (see Supreme Court Order 89Do9, Mar. 29, 1991). However, in light of the fact that the Korean Civil Act stipulates provisional seizure as one of the grounds for the interruption of the extinctive prescription as the provisional seizure, not for the prohibition of disposal, but for the application for provisional seizure, the creditor's intent to realize the right is objective, it is not because the provisional seizure has the effect of the prohibition of disposal, which is the original effect of provisional seizure, and the provisional seizure decision against the deceased person is null and void, and it shall not be deemed that the application for provisional seizure and the fact that the decision was made did not have the effect of the suspension of the extinctive prescription. Thus, even if the provisional seizure is null and void, if the creditor's intent to realize the right is objective, it shall be recognized as the grounds for

In the instant case, even though about seven years have passed since the date of death of the Plaintiffs from the date of the provisional attachment decision of this case, the registration of ownership transfer for active property of this case was not completed due to inheritance, and the Defendant did not have to file an application for provisional attachment in order to preserve the claim for the reimbursement of this case with the debtor, and if the Defendant knew the death of this case through a family registry copy or a certified copy of the register or a certified copy of the register or files an objection against the provisional attachment decision of this case, it can be easily recognized in light of the empirical rule that the Defendant would have taken measures to preserve the right, such as the application for provisional attachment. Accordingly, it is reasonable to deem that the Defendant’s intention to realize the right to the claim for reimbursement of this case was sufficiently expressed upon the application for provisional attachment of this case. Accordingly, the extinctive prescription of the claim for reimbursement of this case was interrupted due to the provisional attachment decision of this case.

In addition, the plaintiffs made the appearance the same as that of a person who died without a long-term death report and registration of inheritance, and they did not inform the defendant of the death or raise an objection for this reason even at the time of the decision of provisional attachment of this case that was applied by the defendant with trust in its appearance. In the lawsuit of this case brought nine years after the date of the death of the reason for the reason that the provisional attachment of this case was filed against the deceased person, claiming that the provisional attachment of this case has no effect of interrupting prescription cannot be permitted against the good faith principle.

C. Sub-committee

Thus, the defendant's claim for indemnity against the plaintiffs was suspended due to the lawsuit of indemnity of this case and the decision of provisional seizure of this case (where the statute of limitations is deemed five years).

5. Determination on the main claim

Each joint and several guarantee contract of this case and mortgage contract of this case are valid, and since the prescription period of the claim for reimbursement of the objection inherited by the plaintiffs is interrupted and continue until the conclusion of the pleadings of this case, the claim for confirmation of existence of the plaintiffs' obligation, claim for restitution of unjust enrichment premised on the invalidation of the contract and the registration of mortgage shall

6. Judgment on the counterclaim

(a) Existence of liability for indemnity;

After the Defendant paid the insurance proceeds to the insured amount of KRW 431,821,449, the fact that the Defendant received dividends of KRW 315,304,310 in the above voluntary auction procedure is identical to the above-mentioned facts. As such, the Plaintiffs, who succeeded to the claim for reimbursement of claims, are liable to pay the remainder of the claims and damages for delay which have not been paid to the Defendant according to their respective inheritance shares.

B. Determination on the plaintiffs' defenses of qualified acceptance

(1) The plaintiffs' assertion

On April 20, 2002, when eight years have passed since the death of Lee Jong-sung, the plaintiffs came to know that the joint and several liability obligations of Lee Jong-sung were remaining after receiving a letter of demand for performance of obligation from the defendant, and that the report was accepted with the Seoul Family Court after filing a report on the inheritance recognition of the deceased, and thus, the plaintiffs claim that the above liability for indemnity shall be borne only within the scope of inherited property from Lee Jong-sung.

(2) Determination:

(A) Comprehensively taking account of the overall purport of the arguments stated in Gap evidence 26 (i.e., evidence Nos. 19-27), Eul evidence Nos. 19-7, 16, 25, and 28, the plaintiffs filed a petition for adjudication on renunciation of inheritance with Seoul Family Court 2001Ra4093 on July 4, 2001. On April 11, 2002, the plaintiffs obtained an adjudication to accept a petition for adjudication on the qualified acceptance by changing the purport and reason of the petition to the report on the qualified acceptance of the qualified acceptance on Nov. 12, 2002, along with the active property list of these statements attached to the property list of these statements. Although the defendant filed a special complaint with the Supreme Court on June 4, 2003, the appeal was dismissed (20031) and the judgment became final and conclusive (2031).

(B) Effect of accepting acceptance of qualified acceptance

A judgment on acceptance of a qualified acceptance by the family court is recognized as satisfying the requirements for the qualified acceptance, and it does not confirm its effect, but the final judgment on whether a qualified acceptance has the effect of inheritance is decided in civil procedure pursuant to the substantive law (Supreme Court Decision 2002Da21882 Decided November 8, 2002). Therefore, it cannot be readily concluded that the effect of a qualified acceptance has occurred solely on the fact that the Plaintiffs’ report on a qualified acceptance was accepted as above.

(C) Validity of the report on qualified acceptance of this case

Therefore, the Constitutional Court rendered a ruling of inconsistency with the Constitution of the Republic of Korea as to Article 1026 subparagraph 2 of the Civil Code before the amendment, which provides that the inheritance shall be deemed to have been granted upon the lapse of three months after the commencement of the inheritance on August 27, 1998. Accordingly, the Constitutional Court decided that the Civil Code was amended by Act No. 6591 on January 14, 2002, and that the heir was not aware of the excess of the inheritance obligation within three months after the commencement of the inheritance without gross negligence, and that the heir was not aware of the excess of the inheritance obligation within 3 months after the commencement of the inheritance, Article 1019 (3) of the Civil Code which provides that the heir shall file a declaration of qualified acceptance within 9 months after the commencement of the inheritance.

On September 13, 1993, the facts of this case were as follows. In full view of the statements and the overall purport of evidence Nos. 120 and No. 11 of evidence Nos. 199-11 as to the above facts: ① on March 3, 1993, the head of the public hospital affiliated with the National Foundation of the National University sent the plaintiff Lee E-Woo, E-Woo, E-Woo, and E-Woo, a content-proof mail demanding the implementation of the law; ② on March 20, 1993, the death of the deceased E-Woo, the deceased E-Woo had the effect of the above notification No. 970, Dec. 13, 1991, the plaintiff Lee Jong-dong, which had been owned by the deceased E-Woo, and the facts of this case's inheritance or non-approval of this case's 97,000,000 won, which had already been given to the defendant by establishing the inheritance or non-approval of this case's.

C. The scope of the plaintiffs' liability

The principal of the remainder of the indemnity liability of this case is KRW 116,517,139 ( KRW 431,821,449 - KRW 315,304,310). The agreed delay damages until April 20, 202 are KRW 297,001,591 (A3). As such, the surviving indemnity obligation of KRW 413,518,730 ( KRW 116,517,139 + KRW 297,01,591) and the principal amount of KRW 116,517,139, and KRW 116,517,139, and the heir’s heir’s share in inheritance is 1/5, and the Plaintiffs’ share in inheritance is 82,000,001,000 won, 2937,3136,137,1375,137,137,275, etc. (137) and 205.

7. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the defendant's counterclaim is justified within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Among the judgment of the court of first instance, the part concerning the plaintiffs' counterclaim is just, and the plaintiffs' appeal is dismissed, and the part concerning the defendant's counterclaim is unfair with some different conclusions, so the defendant's appeal is accepted and the judgment of first instance is modified as above. It is so decided as per Disposition.

Judges Gu-Appellee (Presiding Judge)