2015Da13096 Co-owned property partition

A

Attorney Choi Young-young, Lee Jae-young, and public-service advocate

person

1. B

person

3. F;

4. G.

5. H;

6. I

Defendant 1, 3, 4, 5, and 6 (Attorney Go Chang-sik, Counsel for defendant-appellant)

2. C.

7. E.

Appellee, Appellee and Appellant

Jeju District Court Decision 2013Na2009 Decided January 21, 2015

May 11, 2018

The judgment below is reversed, and the case is remanded to Jeju 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. Examining the record as to the grounds of appeal by Defendants B, F, Defendant G, Defendant H, and Defendant I in accordance with the relevant legal principles, the lower court was justifiable to have determined that each of the above lands should be divided by ordering an auction of each of the instant lands on the grounds as indicated in its reasoning and allocating the price. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

2. Examining the Plaintiff’s grounds of appeal, the lower court was justifiable to have determined that the Plaintiff purchased the said shares in the compulsory auction procedure commenced on September 19, 2011 in the name of Defendant C’s partial assignee D (hereinafter “acquisition Intervenor”), among each of the instant lands, and that the Plaintiff should distribute the amount equivalent to 1/14 shares to the Plaintiff when allocating the proceeds after the auction as a divided method of each of the instant lands. In so doing, the lower court did not err by misapprehending the relevant legal doctrine regarding the partition of co-owned property.

3. As to the ground of appeal by the acquiring intervenor

(1) Examining the record in accordance with the relevant legal principles, the lower court was justifiable to have rejected the Intervenor’s assertion regarding the co-ownership of sectional ownership and the property used for the use thereof on the grounds as indicated in its reasoning. In so doing, the lower court did not exhaust all necessary deliberations, or did not err by exceeding the bounds of the principle of

(2) A renunciation of inheritance is retroactively effective at the time of commencement of inheritance (see Article 1042 of the Civil Act). A person who renounces inheritance is deemed to have never been an inheritor (see Supreme Court Decision 2011Da29307, Jun. 9, 201). In addition, where there are several successors, if one inheritor renounces inheritance, the said inheritor’s renunciation of inheritance shall vest in the proportion of the inheritance portion of other inheritors (see Article 1043 of the Civil Act).

The lower court determined that: (a) on May 16, 2003, the registration of ownership transfer was made in the name of Defendant B with respect to each of the instant lands under J and K’s name; (b) on January 7, 2005, Defendant C, Defendant F, Defendant G, Defendant H, Defendant I, Defendant E, and the Intervenor, the heir of K with respect to each of the instant lands; (c) on December 4, 2004 and November 30, 204, the said registration of subrogated inheritance was made in the name of Defendant C, Defendant E, and the heir; and (d) on the ground that the said registration of renunciation of inheritance was accepted on December 4, 2004 and November 30, 204, the said registration of renunciation of inheritance was based on the renunciation of inheritance by the said Defendants; and (e) on the premise that the remaining inheritors were reverted to Defendant B, Defendant C, and Defendant E’s shares owned by Defendant B, Defendant H 126/16, and Defendant H136/16/1.

However, such determination by the lower court is difficult to accept.

The lower court determined that Defendant F, Defendant G, Defendant H, and Defendant I also increased the shares of Defendant B following the waiver of inheritance by Defendants C and E. However, the lower court determined that there was no change in the shares of the acquiring intervenor. However, according to the facts acknowledged by the lower court, Defendant B is not the heir of the Plaintiff, and the acquiring intervenor is the heir of K. Accordingly, according to the legal doctrine as seen earlier, the shares in Defendant C and E are the shares in the name of Defendant C, Defendant G, Defendant H, and Defendant H, as well as the acquiring intervenor, according to the above Defendants’ renunciation of inheritance. On the other hand, the shares in the name of Defendant C and E are attributed to Defendant B, who is not the heir of the said Defendants, but the shares in the original process of compulsory auction. Even if the Plaintiff purchased 1/14 shares registered in the name of the acquiring intervenor in the original process of compulsory auction, the lower court did not err by misapprehending the legal doctrine on the shares in the inheritance of the said Defendants, which were retroactively attributable to Defendant B’s inheritor, but did not vest in the acquisition of the Defendants’s waiver of inheritance.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in