[1] Whether a testator is effective as a will by a self-written document even if the testator places his/her seal on a copy other than the original copy of the will (negative)

[2] The case where a will is not effective as a will because the will does not have an awareness of necessity by a self-certificate of completion, but has an effect of a private donation contract

[3] The case where the return of the legal reserve of inheritance is recognized as the method of return

[1] The will by means of a self-written document is valid for the testator to write his full text, date, address, and name and affix his seal (Article 1066(1) of the Civil Code). If the testator affixes his seal on the copy of the original document when it is based on the strict nature of the will, it is not valid for the testator to affix his seal on the copy of the original document by a self-written document.

[2] Even if the testamentary document prepared and delivered by the testator to the inheritor is null and void because the testamentary document does not conform to the legal form as a will, if the document is dead, it includes a donation of the specific property to the inheritor, and if the above inheritor consents, it is effective between the testator and the above inheritor. Thus, the testamentary document is effective as a private donation contract.

[3] Ordinary reserve of inheritance is in principle returned in kind in the absence of circumstances such as the impossibility of return in kind. However, in a case where legal reserve of inheritance is relatively small compared to the value of the donated property and where the return in kind is recognized, when the share of each real estate, which is the donated property, is too complicated, the legal reserve of inheritance shall be returned at the value when the share of each

[1] Articles 1060 and 1066(1) of the Civil Act / [2] Articles 554 and 562 of the Civil Act / [3] Article 1115(1) of the Civil Act

[1] Supreme Court Decision 97Da38510 delivered on June 12, 1998 (Gong1998Ha, 1866)

Plaintiff (Law Firm Maritime Co., Ltd., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Han-han, Counsel for the defendant-appellant)

Defendant 4 (Attorney Han-han et al., Counsel for defendant-appellant)

March 19, 2008

1. The Plaintiff (Counterclaim Defendant)’s primary claims against Defendant 2, 3, and Defendant 4 are all dismissed.

2. Of the real estate listed in the separate sheet Nos. 1 and 2 of the separate sheet Nos. 1, Defendant 1, Defendant 2, Defendant 3, and Defendant 4, as to the share of 3,745 percent; Defendant 2, Defendant 3, and Defendant 4, as to the share of 1,415 percent, respectively, shall implement each procedure for the registration of ownership transfer for a private donation on July 18, 2006, against the Plaintiff (Counterclaim Defendant).

3. As to each real estate listed in the separate sheet Nos. 3, 4, and 5 against the Plaintiff (Counter-Defendant) and each real estate listed in the separate sheet Nos. 1, Defendant 1 as to the third share of 11, Defendant 4 as to the share of 2/11, Defendant 2 and Defendant 3 as to the share of 2,332,494, respectively, from the Plaintiff (Counter-Defendant) and as to the share of 2/11 as to each of the shares of 2/11,00, respectively, from the Plaintiff (Counter-Defendant) on July 18, 2006.

4. On July 18, 2006, the Plaintiff (Counterclaim Defendant) performed the procedure for the registration of ownership transfer on the ground of testamentary gift on July 18, 2006 with respect to 2/11 of the shares of each real estate listed in the separate sheet No. 2 list against Defendant 4.

5. The plaintiff (Counterclaim defendant)'s remainder of the main claim is dismissed.

6. The costs of litigation incurred between the Plaintiff (Counterclaim Defendant) and the Defendant 1 are assessed against the Plaintiff, and the part incurred between the Plaintiff (Counterclaim Defendant) and the Defendant 2, 3, and Defendant 4, together with the principal lawsuit and the counterclaim, 20%, and the remainder are assessed against the said Defendants and the Defendant Counterclaim Plaintiff.

Of the real estate listed in the separate sheet Nos. 1 and 2, Defendant 1, Defendant 2, Defendant 3, and Defendant 4, with respect to the share of 1,465/10,00, with respect to the share of 55/100, respectively, Defendant 2, Defendant 3, and Defendant 4, with respect to each of the real estate listed in the separate sheet Nos. 3, 4, and 5, with respect to the ownership transfer due to legacy on July 18, 2006, and Defendant 4, with respect to each of the real estate listed in the separate sheet Nos. 3, 4, and 5, with respect to each of the real estate listed in the separate sheet Nos. 1 and 1,465, with respect to each of the real estate listed in the separate sheet No. 1 and 1, and the ownership transfer registration on each of the real estate owned by Defendant 2, Defendant 2, Defendant 3, and Defendant 1 and Defendant 4 (Counterclaim Plaintiff).

Counterclaim: This provision shall also apply to paragraph (4) of this Article.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. The Non-Party’s death and inheritance relationship

The Nonparty, on July 18, 2006, died on and as his inheritor, had Defendant 1, the wife, and Defendant 2, 3, and Defendant 4, the remainder of the children (hereinafter “Defendant 4”).

(b) Confirmation of property to be inherited;

Property owned by the Nonparty, who is subject to inheritance at the time of the Nonparty’s death, is as follows:

(1) The right to lease a rental house concluded between the non-party and the Sinpo-si, Seopo-si, Seopo-si (name of apartment, Dong, lake omitted) located (area 57.3812m2, area 57.3812m2, hereinafter "the apartment of this case") in the name of the non-party and the Sinpo-si, Seopo-si, Seopo-si.

(2) Each real estate listed in the separate sheet No. 1

(3) Each real estate listed in the separate sheet No. 2 list (hereinafter “instant land and building”).

(4) 60,451,000 won (in the absence of any dispute) of the deposit deposited in an agricultural cooperative as of July 18, 2006, the date of the Non-Party’s death (the non-party’s death)

C. Preparation of the Nonparty’s certificate of birth

(1) On August 18, 2005, the Nonparty: (a) prepared one copy of the self-written document called “certificate”; (b) copied it on the duplicate; and (c) made two copies of the document by affixing the Non-Party’s seal imprint affixed the Non-Party’s seal imprint on the copy (Article 2, No. 4, and the original document is No. 3; hereinafter “No. 2 and No. 4”), and (c) delivered one copy to the Plaintiff and Defendant 1, each of whom was released in Jeju-do at the time when the said document was delivered on September 18, 2005.

(2) The content of the deed of this case was listed in the apartment of this case and each real estate listed in the separate sheet No. 1 (number 1 omitted) 2,33 in Seopo-si (number 1 omitted) No. 2,36 in Seopo-si (number 1 omitted), but it was divided into the real estate listed in the separate sheet No. 1 and No. 2 on November 30, 2006. Defendant 1, the wife, 295 among the apartment of this case and the land of this case 1 omitted, 295 square meters in Seopo-dong (number 1 omitted), 1,50 square meters in Seopo-si (number 1 omitted), 2,333 square meters in color among the land of this case, 300 square meters in color and 150 square meters in size and 400 square meters in size, 250 square meters in size and 250 square meters in size among the land of this case, 32,000-dong and 420 square meters in size.

D. Meanwhile, the Plaintiff and the Defendants completed the registration of ownership transfer as of November 9, 2006, which was received on November 9, 2006, by the Jeju District Court No. 46148, which was received on July 18, 2006, with respect to each real estate listed in the separate sheet, i.e., 3/11 shares, and 2/11 shares, respectively.

[Based on recognition] The plaintiff, defendant 3, 2, and 4: Fact that there is no part of dispute, Gap evidence 1 through 4, Eul evidence 1 and 2 (including each number), the plaintiff's personal examination result, the whole purport of pleading, the plaintiff and defendant 1: The fact that confession is made (Article 150 (3) of the Civil Procedure Act)

2. The parties' assertion and judgment

A. The assertion and judgment on the principal claim

(1) The parties' assertion

(A) Since the Plaintiff’s deed of this case is effective as a will, a testamentary gift should be made in accordance with the purport of the deed of this case. At present, Defendant 1’s shares in each of the real estate listed in [Attachment 1] list 1, 31, and the remaining Defendants own shares in 2/11,00, respectively, and thus, 4,936 shares in each of the above real estate (based on the Plaintiff’s calculation basis, total property is calculated at 2,30 square meters and 1,150 shares in each of the above real estate are calculated at 2,30 square meters below 5 stories, and 1,465 shares in each of the above real estate are calculated at 1,465 shares in each of the above real estate, and the remaining Defendants are more attributed to their statutory shares in each of the above shares. Thus, the Defendants are entitled to return the shares in each of the above real estate to the Plaintiff only in accordance with the purport of the previous testamentary gift and the purport of the ownership transfer registration in each of this case’s.

(B) As to this, Defendant 2, 3, and 4 asserted to the effect that, while disputing the validity as a will of the instant deed, the Plaintiff and the Defendants shall obtain the deceased Nonparty’s property according to their statutory shares in inheritance, and even if the validity of the deed is recognized as a private donation, it cannot be returned as to each real estate listed in the separate sheet 3 through 5.

(2) Determination:

(A) First, we examine the validity of the instant deed prepared by the deceased Nonparty and delivered to the Plaintiff and Defendant 1.

(B) To examine, the will shall be effective in accordance with any one of the five types prescribed by the Civil Act (Article 1065 of the Civil Act, and testamentary gift shall be effective as long as it is only one legal effect by will, as long as the testamentary gift has only one legal effect), and among them, the testator shall write his full text, date, address, name and affix his seal (Article 1066(1) of the Civil Act), and on the basis of strict nature of the will, the document to be sealed by the testator shall not be deemed to mean the original of the document, nor shall it be affixed to the duplicate. According to the statements and shapes stated in subparagraphs 2 and 4 of the above Article, the document of this case is written only as “the date of preparation, August 2005,” and it does not specify the date, and since the document of this case is written by the Nonparty on the copy of the testament which is not the original document, the document of this case shall not have the validity of the testamentary gift as the part of the co-inheritors, which is a testamentary gift.

(C) However, even in the case of testamentary gift which does not have food, it can be recognized as a private donation in certain cases. ① In the instant deed, in view of the fact that the non-party dies, the right to lease 20 square meters of the instant apartment (it does not clearly state the specific contents of the right to be donated, but the deceased non-party and Defendant 1 living together in the instant apartment that is a leased apartment, the right which the deceased non-party wanted to donate to Defendant 1 seems to be the right to lease the above apartment and the right to be donated accordingly) and the title 1, 2 of the attached Table 1 and the title 1, 155 square meters of the land indicated in the attached Table 1, 1, 150 square meters of the land indicated in the attached Table 1, 2, and that the deceased non-party's consent to the donation of each real estate stated in the list 3, 50 square meters to the plaintiff and the non-party's consent to the donation of this case to the plaintiff 1 and the non-party as the deceased's consent thereto.

Therefore, from this point of view, the deceased non-party expressed to the plaintiff the intention to donate each real estate listed in the separate claim Nos. 1, 2, 150 of the real estate Nos. 1, 333 and the list No. 3 through 5 of the same list as the real estate No. 3 through No. 5 of the same table No. 1, 2, and the plaintiff consented, and thus the deceased non-party and the plaintiff entered such private donation contract was concluded between the deceased non-party and the plaintiff. The plaintiff can seek implementation of the ownership transfer registration procedure under the private donation contract. On the other hand, it is possible for the defendants who are the remaining successors of the deceased non-party to claim 3/11 of the above real estate, and the remaining defendants already completed the ownership transfer registration due to inheritance, as seen earlier, the defendant 1 had the duty to enter the ownership transfer registration procedure No. 25,630 of the real estate No. 25,745/129/136 of the remaining shares of the real estate No. 36/10).

(D) Meanwhile, even if Defendant 2, 3, and 4 received the Plaintiff’s gift of each of the real estate listed in the [Attachment 1] list 3 through 5, the said Defendants cannot return the said real estate as the shares corresponding to the legal reserve of inheritance of the said Defendants.

그러므로 위 항변의 당부를 살피기에 앞서 망 소외인의 원고에 대한 이 사건 증여로 인해 침해된 피고들의 유류분 액수를 산정하여 보건대, 피고들의 유류분 부족액의 산정방식은 유류분 산정의 기초재산액에 각 피고들의 유류분을 곱한 금액에 피고들의 특별 수익분을 공제한 다음 다시 그 금액에서 피고들의 순상속분액을 공제한 금액이고[각 피고의 유류분 부족액 = {(유류분 산정의 기초재산액 × 각 피고의 유류분 비율) － 각 피고의 특별 수익액} － 각 피고의 순상속분액], 유류분 산정의 기초가 되는 재산은 피상속인의 상속개시 당시의 적극재산 가액에서 상속개시 전의 1년간 증여한 재산의 가액을 가산하고 상속채무액을 공제한 금액을 기초로 주5) 산정 하되, 다만 공동상속인 중의 1인이 피상속인으로부터 증여를 받은 경우에는 그 증여가 상속개시 전의 1년간에 행해진 것인지 여부에 관계없이 전부 유류분 산정을 위한 기초재산에 산입하게 되는바(유류분액을 산정함에 있어 그 기초가 되는 재산의 평가는 모두 상속개시 당시를 기준으로 한다), 위 계산방식에 따라 피고들의 침해된 유류분 액수를 살펴보면, 그 유류분 산정의 기초가 되는 재산은 앞서 살펴본 대로 ① 임대차보증금 3,600만 원인 이 사건 아파트의 임차권, ② 별지1 목록 기재 각 부동산, ③ 이 사건 연천군 토지 및 건물, ④ 2006. 7. 18.을 기준으로 소외인 명의로 농업협동조합에 예탁되어 있던 예탁금 60,451,000원이라 할 것인데, 상속개시일인 2006. 7. 18. 당시 위 각 재산의 평가액(부동산의 경우, 2006. 1. 1.자 공시지가를 기준으로 한다)은 총 주6) 414,344,340원 이고, 위 피고들의 각 유류분 지분은 그 법정상속분의 2분의 1인 11분의 1지분이라 할 것이며, 위 피고들이 별지1 목록 1, 2 기재 각 부동산 중 각 2,330분의 주7) 295지분 및 피고 4가 이 사건 연천군 토지 및 건물을 수익한 사실은 앞서 살펴보거나 뒤에서 인정한 바와 같고, 망 소외인 명의의 농업협동조합에 대한 예탁금은 이 사건 증서의 사인증여 대상에 포함된 재산이 아니어서 특별한 사정이 없는 한 망 소외인의 공동상속인들이 그 상속지분에 따라 상속받을 것으로 예상되어 그 예탁금 중 위 각 피고들의 상속지분 해당액수는 각 주8) 10,991,090원 인바, 그에 따라 계산한 피고 2, 3의 침해된 유류분 액수는 각 2,332,494원(= 414,344,340원 × 1/11 － 주9) 24,344,083원 － 10,991,090원)이고, 피고 4는 침해된 유류분이 주10) 없으므로, 따라서 피고 2, 3의 유류분 항변은 이유 있고 피고 4의 항변은 이유가 없으나, 다만 피고 2, 3이 유류분 항변으로서 이 사건 사인증여에 따른 원고의 별지1 목록 3 내지 5 기재 각 부동산의 소유권이전등기절차의 이행을 거절할 수 있는 범위는 위 각 부동산의 시가 합계액 111,878,000원 중 2,332,494원에 해당하는 지분이므로, 결국 원고가 피고 2, 3에게 이 사건 사인증여를 원인으로 하여 구할 수 있는 위 각 부동산의 지분을 계산하여 보면 198,098,566/1,230,658,000지분(= 2/11 － 2,332,494/111,878,000)이 산출되는데, 통상 유류분 반환청구는 현물반환이 불가능하다는 등의 사정이 없는 한 현물로 반환하는 것이 원칙이기는 하나 별지1 목록 3 내지 5 기재 각 부동산 가액의 합계가 111,878,000원인데 비하여 피고 2, 3의 침해된 유류분은 2,332,494원으로서 비교적 소액이고, 원고가 위 피고들에게 사인증여를 원인으로 한 소유권이전등기절차를 구할 수 있는 위 각 부동산의 지분도 너무 복잡해지는 결과를 야기하므로, 원고는 망 소외인의 원고에 대한 증여로 침해된 피고 2, 3의 유류분을 가액으로 반환함이 상당하고, 위 피고들이 원고의 현물반환 청구에 대한 유류분 상당의 반환 거절의 항변 속에는 피고들의 침해된 유류분 가액의 반환과 동시이행으로 원고의 청구를 거절하는 취지가 포함되어 있다고 선해되므로, 피고 2, 3은 원고로부터 각 2,332,494원을 반환받음과 동시에 원고에게 별지1 목록 3 내지 5항 기재 각 부동산 중 각 11분의 2 지분에 관하여 2006. 7. 18. 사인증여를 원인으로 한 각 소유권이전등기절차를 이행할 의무가 있다고 할 것이어서, 피고 2, 3의 위 항변은 위 인정 범위 내에서 이유 있다.

B. Determination on the counterclaim claim

The fact that the deceased non-party bequeathed the land and building of this case to Defendant 4 prior to his birth does not conflict between the counter-party. Thus, the plaintiff is obligated to implement the procedure for ownership transfer registration on July 18, 2006 with respect to the share of 2/11 of the plaintiff's statutory shares in inheritance among the land and building of this case to Defendant 4, since the plaintiff is obligated to perform the procedure for ownership transfer registration on the ground of legacy on July 18, 2006.

3. Conclusion

Therefore, the plaintiff's main claim against the defendants in this case is dismissed as it is without merit, and the conjunctive claim is justified within the scope of the above recognition, and the remainder of the conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the plaintiff's counterclaim against the plaintiff 4.

[Attachment 1] List of Real Estate: (Omission)

[Attachment 2] List of Real Estate: (Omission)

Judges Bo Jinia

(1) The area on the registry is 2,236 square meters as seen earlier, and the Nonparty, the originator, appears to be a clerical error.

2) According to the statement of this case, the deceased non-party made an error of KRW 2,336 in the aggregate of 1,336 shares of each of the real estate listed in the separate sheet 1 and 2 as stated in the separate sheet 2,333. Among them, the plaintiff 1,150 shares and the defendants 295 shares as stated in the separate sheet 1,330 shares. The total area of each of the gift real estate is merely 2,330 square meters, and the actual status is 6 square meters, and 3 square meters are 1,150 shares and 295 shares as stated in the separate sheet 1,330 shares. Thus, even if the plaintiff among the above certificates, the plaintiff 1,330 shares as stated in the separate sheet 2,330 shares as stated in the separate sheet 2,330 shares and the remaining defendants' intent to donate shares to the plaintiff, it should be interpreted that the plaintiff 2,330 shares as stated in the above separate sheet 201,30 shares of the plaintiff's claim.

Note 3) The basis for calculation is as set out in Note 1, 2, respectively.

(4) The Plaintiff sought implementation of the procedure for the registration of ownership transfer based on private donation only with respect to each real estate listed in [Attachment 1] List 1 and 2, the Plaintiff’s respective real estate. However, since the legal effect of a private donation occurs due to the death of a donor, it is reasonable to deem that the cause of the registration is “ July 18, 2006,” which is the date of the donor’s death.

(5) Defendant 2, 3, and 4 asserted that only 1/11 shares, which are the legal reserve of inheritance, were infringed only on the real estate specified in the list 3 to 5 of the inherited property, among the inherited property, and filed a defense of infringement of legal reserve of inheritance on the premise that only the above real estate should be calculated as the property, which is the basis for calculating legal reserve of inheritance. However, the entire property, which is the basis for calculating legal reserve of inheritance, is subject to inheritance at the time of the commencement of inheritance, as seen above.

(6) ① The appraised value of the right to lease of an apartment building of this case is estimated to be the same amount as the ordinary lease deposit, and the value is KRW 36 million. ② The sum of the values of each real estate indicated in the attached Tables 1, 2, and 2 is KRW 192,27,00,000 calculated by multiplying the officially announced value of each real estate per square meter by 24,900, and ③ the value of each real estate listed in the attached Tables 1, 3, and 5 is KRW 3,58,00,000, the officially assessed value of each real estate listed in the attached Tables 3 through 5 is KRW 107,00,00 in total, and ④ the officially assessed value of each real estate of this case is KRW 114,878,00 in total,00 in total, KRW 29,00 in total, KRW 378,400 in total, KRW 404 in total, and KRW 3014 in total,504.

7) As long as the legal effect of the instant deed is recognized as a private donation of the Plaintiff’s principal claim against the Defendants, the Defendants succeeds to 295/2,330 shares of each real estate listed in the separate sheet 1 and 2.

Note 8) 60,451,000 x 1/11

9) The sum of the officially announced values of each real estate listed in Appendix 1, 2, 192,27,000 x 295/2,330, and hereinafter the same shall apply) listed in Appendix 1, 2.

-414,756 won (=414,340 won) x 1/11 - 192,277,000 won x 295/2,330 - 10,991,090 - 13,738,340 won) rather than Defendant 4 4 , 414,756 won more than legal reserve of inheritance.