A. The purport of Article 1008 of the Civil Act

(b) Method of calculating the share of inheritance in cases where there are special beneficiaries among co-inheritors;

A. Article 1008 of the Civil Act provides, “In cases where there is a person among co-inheritors who received a gift or testamentary gift of property from an inheritee, if the gift or testamentary gift does not reach his/her own share of inheritance, there exists a share of inheritance to the extent of the shortage of the property.” The purport of this provision is to consider the donation or testamentary gift of property among co-inheritors in cases where there is a special beneficiary among co-inheritors who received a gift or testamentary gift of property from the inheritee, in order to ensure the fairness among co-inheritors

B. For the purpose of calculating a specific share of inheritance in cases where there are special beneficiaries among co-inheritors, the value of the property held at the time of the commencement of the inheritance shall be added to the value of the property held by the decedent at the time of the commencement of the inheritance, and then the method of calculating a deduction of the value of the donation or testamentary gift, which is the gift of the special beneficiary, from the value of the share of inheritance calculated by multiplying that value by the statutory share of inheritance by each co-inheritors. Here, the "value of the property held by the decedent at the time of the commencement of the inheritance" as the basis

Article 1008 of the Civil Act

Plaintiff-Appellee et al., Counsel for the plaintiff-appellant

[Defendant-Appellant] Defendant 1

Daegu High Court Decision 92Na2234 delivered on February 17, 1994

The judgment of the court below is reversed.

The case shall be remanded to the Daegu High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below rejected the plaintiff 2's claim that the non-party 1 was originally owned by the deceased non-party 1. The non-party 2 was deceased on December 7, 198, the non-party 2, the non-party 3, the non-party 9, and the non-party 3 were co-inheritors. The above non-party 3 agreed to waive inheritance in consultation with other inheritors. On May 18, 1989, the above non-party 2's share in 3/7, and the non-party 2/7's share in the above non-party 9's shares in the non-party 9's shares in the non-party 4 were the non-party 9's total amount of 70 billion won and the non-party 2's share in the above non-party 9's shares in the non-party 9's shares in the non-party 2's non-party 9's shares in the above real estate were no more than 9's shares in inheritance.

2. Article 1008 of the Civil Act provides that "where there is a person among co-inheritors who received a donation or testamentary gift of an inherited property from the inheritee, if such gift or testamentary gift does not reach his/her own share, there exists a share of inheritance to the extent of the deficient portion." This purport is to treat the gift property as the share of inheritance in order to ensure fairness among co-inheritors in cases where there is a special beneficiary who received a donation or testamentary gift from the inheritee among co-inheritors, and to take this into account in calculating the specific share of inheritance in order to assess the share of inheritance. In accordance with the above provision, for the purpose of calculating the specific share of inheritance in cases where there is a special beneficiary among co-inheritors, the value of the property held at the time of the commencement of inheritance should be added to the value of the property acquired by the inheritee at the time of the commencement of inheritance, by the method of calculating the share of inheritance calculated by multiplying the value of the property acquired by the special beneficiary by the share of inheritance by the value of the property acquired by each co-inheritors, and thus, the value of the inherited property should be considered as an excessive share of inheritance.

Therefore, in cases where there is a special beneficiary who received a donation by the inheritee among co-inheritors, only if the value of the share of inheritance calculated by multiplying the sum of the total amount of active property owned by the inheritee at the time of commencing the inheritance and the amount of donation by the statutory share of inheritance by the inheritor, who is the special beneficiary, falls short of the above share of inheritance, the heir can no longer claim the share of inheritance in respect of the inherited property.

Nevertheless, the court below held that the plaintiff has no right to inherit the real estate in this case, on the contrary grounds that the difference between the active property held by the non-party 1 at the time of the death and the negative property equivalent to all inheritance obligations is added to the plaintiff's inheritance value. The plaintiff's share of inheritance equivalent to the amount calculated by multiplying the plaintiff's statutory inheritance ratio is below his/her inheritance value. Thus, the court below erred in the misapprehension of legal principles as to the share of inheritance of the special beneficiary. The ground of appeal pointing this out is with merit.

3. Therefore, without examining other grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)