Appellants (Counter-Appellants) 1 and 2 others (Law Firm Shinra, Attorneys Noh-in, Counsel for the plaintiff-appellant)

Other party (appellant) 1 (Attorney Park Jong-ho, Counsel for special representative)

Other (Counter-Appellant) 2 and one other (Law Office of the General Law Office in Port and Port, Attorneys Lee Dong-soo et al., Counsel for the plaintiff-appellant)

Daegu Family Court Decision 2013 Rahap505, 2014 Mahap1007 (Rejudgments) dated February 10, 2015

1. As follows, part of the claim for division of inherited property in the judgment of the first instance shall be changed:

The real estate listed in the attached Table 1 list shall be divided into co-owned one-third shares by the claimant (the other party).

2. The appeal against the part concerning the claim for determination of the entitlement to a contributory portion by the other party is dismissed.

3. The total expenses of an adjudication shall be borne individually by each person;

1. Purport of claim

(a) Main Trial

The text of paragraph (1) is as follows.

(b) Anti-adjudication;

The contributory portion of 1 by the other party to the real estate indicated in the attached Table 1 list, which is the inherited property of the deceased, outside of 1, shall be determined by 60%.

2. Purport of appeal;

The trial in the first instance shall be revoked. All of the petitioners (the other party to the trial and the hereinafter referred to as the "applicants") shall be dismissed, and a trial, such as the purport of the claim for the counter-trial.

1. Determination on the defense prior to the merits

A. The gist of the claimant's assertion

In a trial at the first instance court, there is no fact that an attorney-at-law representing a claim for determination of the contributory portion and a request for appointment of a special representative has been granted the power of representation from other party 1, and thus, the claim in this case was instituted by a person without a legitimate power of attorney, and the appointment of a special representative

B. Determination

According to the records, the defendant 1 and the other party 2 of the trial on division of the inherited property of this case (the other party to the trial; the other party to the trial; the other party to the trial; hereinafter the other party's attorney-at-law is the representative of the other party 1 on behalf of the other party 1 who does not have a litigation capacity and applied for the appointment of the special representative of the other party 1 on behalf of the Daegu Family Court 2014 business 1070 on November 4, 2014. The court of the first instance determined that pursuant to Article 62 of the Civil Procedure Act on November 4, 2014, the other party 1 was appointed as the special representative of the other party 1 on behalf of the other party 1 on behalf of the other party 1 who did not have a litigation capacity. Since the other party 2 and the other party 3 appear on behalf of the above party 1 on November 20, 2014, the other party 2's request for adjudication on the counter-appeal cannot be accepted.

2. Judgment on the merits

(a) Facts of recognition;

1) Nonparty 1 (the decedents 310321-1670413), who was deceased on December 1, 201, left as his/her spouse 1 and the rest of the claimant and the rest as his/her children, respectively, and died on December 1, 201.

2) At the time of death, the decedent owned real estate listed in the [Attachment 1] List of KRW 176,000,000 at the market price (hereinafter “instant apartment”).

3) At the time of marriage in 1987, other party 2 received KRW 15,00,000 from the decedent as the purchase fund for the new marriage house ( Address 1 omitted). Nonparty 3 received from the decedent at the time of marriage in 1988 a donation of KRW 18,00,000 as the purchase fund for the new marriage house ( Address 2 omitted) from the decedent at the time of marriage. Nonparty 2 received from the decedent in 1998 a donation of KRW 18,00,000 from the decedent, and kept until now.

4) The other party 2 and the other party 3 donated KRW 47,50,000, respectively, from the inheritee on May 20, 2004. On December 15, 2005, each of the following real estate was donated to the inheritee on the ownership of the inheritee. On October 28, 2009, the other party 2 completed the registration of ownership transfer for the reason of the division of common property as to the portion of real estate listed in the No. 6 of the No. 6 of the claim No. 2, and the other party 2 completed the registration of ownership transfer for the reason of the division of common property, and the other party 2 completed the registration of ownership transfer for the portion of 430/630, owned by oneself on the ground of the division of common property, among the (No. 3 omitted) 601 square meters of common property at the time of resident registration for the

A) Real estate donated by other party 2

1/2 equity in 1/2 equity in 1/2 equity in 2,375,600 m2 ( Address 5 omitted) 165 m2 ( Address 5 omitted) prior to 2026 m2 ( Address 4 omitted) in a Si ( Address 8,002,700 m2) located in 1,656 m2 equity in 1,618,320 m2, among 1406 m2, 1406 m2, 1/2 equity in 1,618,320 m2,320 4 ( Address 7 omitted), 8,092,850 m2,8505 ( Address 8 omitted) and 314 m20,630,630,206 m206 m206,207 84636,6406,6360,6467 6366,263666

B) Real estate donated by Nonparty 3

1/2 equity in 1/2 equity in 1/2 equity in 2,375,600 square meters in 165 square meters in 165 square meters in total ( Address 5 omitted) 6,375,6003 ( Address 6 omitted), 1406.4 square meters in 1406.4 square meters in 1406, 1/2 equity in 1/2 equity in 8,092,850 total 33,089,470 square meters in 1/2 equity in 2021 square meters in 2026 square meters prior to the death of the decedent ( Address 4 omitted) at the time of the death of the decedent who is eligible for the indication of real estate in the head of the Gu.

5) The other party 1 received each of the following deposits from the inheritee before the inheritee’s birth.

On January 31, 2006, 24,000,000 on January 31, 2007, 200 31, 31, 2003, 31,200 on January 31, 2008; 7,600,000 on January 31, 200 on March 17, 2005 5, 10,000 on March 17, 2009; 40,000,000 on March 17, 200 on March 17, 2010; 10,40,000,7,000 on December 23, 200, 200, 80,250,500

6) From 1949, an inheritee was employed as an elementary school teacher in 1996, and retired from office in 196. At that time, an inheritee received total of KRW 226,176,810, such as lump-sum retirement benefits, retirement allowances, and long-term teachers’ savings deposits at the Korean Teachers’ Credit Union around that time. On December 22, 2011, the decedent 1 received KRW 231,351,930 from the Korean Teachers’ Credit Union on December 22, 2011, which was after the decedent’s death.

【Reasons for Recognition】 Evidence Nos. 1 through 9, 12, 14, 15 (including the number of branch offices; hereinafter the same shall apply), Evidence Nos. 1 and 2, and the result of the market price appraisal conducted by the first instance court other than the third party’s request, the purport of the whole examination

B. Determination on other party 1’s claim for determination of the contributory portion

The other party 1 asserts to the effect that he contributed to the formation of the inheritee’s inherited property by either engaging in private financial activities or investing in real estate during the marriage period with the inheritee, and that, since the inheritee suffered dementia and continued to attend the inheritee until the time of death, his contributory portion for inherited property should be determined as 60%.

The entitlement to a contributory portion system prescribed in Article 1008-2 of the Civil Act intends to promote substantive fairness among co-inheritors by considering 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 or increase of the inheritee’s property. As such, to recognize a entitlement to a contributory portion, it is necessary to recognize that the co-inheritors specially supported the inheritee or contributed to the maintenance or increase of the inheritee’s inherited property, as long as it is necessary to adjust the entitlement to a contributory portion for the sake of equity among co-inheritors. In full view of the evidence submitted by the counter-inheritors 1, it is difficult to recognize the fact that the non-party 1 was living with the inheritee by raising some profits through private financial activities, real estate investment, etc. during the marriage period with the inheritee, and by looking at the inheritee, it is difficult to recognize that the inheritee specifically supported the inheritee above an ordinarily expected level, or that there was a special contribution

Therefore, other party 1’s claim for contributory portion cannot be accepted.

C. Determination as to the claimant's claim for division of inherited property

1) The heir and the statutory share of inheritance

According to the above facts of recognition, the claimant and the other parties are co-inheritors of the inheritee, and the statutory share of inheritance is 3/13 of the other parties and 2/13 of the other parties, respectively.

2) Scope of inherited property subject to division

A) The apartment house of this case is owned by the decedent at the time of his death and constitutes the subject matter of division of the inherited property of this case.

B) Next, the claimant asserts that the amount of retirement benefits that was deposited by the decedent with the Korean Teachers' Credit Union before the death of the decedent is the property owned at the time of the decedent's death and is subject to division of the instant inherited property.

In addition, in light of the purport of the fact-finding of the Korean Teachers' Credit Union as an elementary school teacher, the decedent received 226,176,810 won in total, such as retirement benefits, retirement allowances, and long-term savings of teachers at the time of retirement, and around that time, deposited as retirement life benefit goods to the Korean Teachers' Credit Union. On December 22, 2011, the decedent 1, which was after the decedent's death, received 231,351,930 won in total as above from the Korean Teachers' Credit Union on December 22, 2011. In addition, in full view of the fact-finding of the court, the amount of retirement life benefit provided by the Korean Teachers' Credit Union was paid additional money by the decedent who was an insured person after retirement, and the amount was paid to all principal and interest when the decedent who was an insured person, and the beneficiary's priority is entitled to designate only spouse, lineal descendant and sibling before the decedent's death, but it can not be seen that the decedent was designated as the other beneficiary.

Therefore, the claimant's assertion cannot be accepted.

(iii) special proceeds;

A) Other party 1: 317,485,433 won

(1) From January 31, 2006 to December 14, 2010, each of the deposits listed in the table of Article 2-A (5) donated by the decedents from January 31, 2006 to December 14, 201, and the retirement life allowances received from the Korean Teachers' Credit Union on December 22, 2011 are the special profits of counterparty 1. However, in the case of special profits, the amount converted into the currency value at the time of commencement of inheritance should be recognized as special profits in consideration of the change of monetary value. Since it is reasonable to use the GDPR that reflects the change of monetary value at the time of commencement of inheritance, the monetary value at the time of commencement of inheritance should be calculated as the "special profits 】 GP PP DP DP D D D D D D D D D D D D D d d d d d d d d d d d d d d d 1 at the time of death.

(2) As to this, the other party asserts to the effect that each deposit withdrawn from the account of the inheritee on January 31, 2006 and January 31, 2007 by the other party 1 was lent to the claimant 2 around that time, and the claimant 2 paid the full amount of the deposit to the inheritee on July 2007, each of the above deposits cannot be deemed as the special profit of the other party 1, and the remainder of the deposit withdrawn by the other party 1 from the account of the inheritee from January 31, 2008 to December 14, 2010 is also lent to the other party 1, and thereafter, it does not constitute the special profit of the other party 1.

In full view of the overall purport of the examination of evidence Nos. 5 and 7, each of the above evidence Nos. 2-A. 5 and 2-7 was deposited into the account of other party 1 at each relevant date and time as indicated in the table No. 2-A. 5, and each of the deposits deposited in the account of the deceased on July 12, 2007 and July 13, 2007 by the claimant 2 deposited KRW 25,000 and KRW 4,200,000 in the account of the deceased on July 13, 207. However, the evidence submitted by the other party alone was insufficient to recognize that each of the deposits deposited in the above table No. 1 were lent to other party 2 including the claimant 1 and the relevant party 2 deposited in the account of the deceased on the repayment of the above borrowed money, and there is no other evidence to acknowledge otherwise. Therefore, the claimant 1 and the other party 1’s assertion that the above deposited money was the special account of the deceased party 1.

B) Other party 2: 142,354,504 won

(1) Each real estate donated by Nonparty 2 in 15,00,000 to the inheritee in 1987, 1998, 47,500,000,000 won, and 2-A, 47,500,000 won as donated in May 20, 2004, 198, and 37,50,000 won as donated in May 20, 2004, are the special profits of Nonparty 2. The value at the time of commencement of the inheritance of the pertinent special profits is as indicated in the list of the special profits of Nonparty 3, 2 (in the case of cash special profits, as seen earlier, calculated by using the GDP display as the conversion basis).

(2) As to this, the claimant asserts to the effect that other party 2 was donated with 10 gold fevers from the inheritee (total market price of 20,000,000 won). As such, the claimant argues that the other party 2 was donated with 10 gold fevers from the inheritee in 1998, the fact that the other party 2 donated 10 gold fevers from the inheritee in 1998 is as mentioned above. However, the evidence submitted by the claimant alone is insufficient to acknowledge that the other party 2 was donated with 10 yellow fevers from the inheritee, and there is no other evidence to acknowledge this otherwise, the claimant's above assertion is not acceptable.

(3) The other party 2 asserts to the effect that all of the above real estate donated by himself from his decedents constitutes a gold forest and a tombstone farmland, and thus, it cannot be viewed as a special benefit.

The “farmland which is a grave” stipulated in Article 1008-3 of the Civil Act refers to the farmland which is a profit therefrom and appropriated for the expenses for the management and removal of graves. The mere fact that a grave is installed on that land does not constitute the farmland which is a grave, and pursuant to the above provision, a person who asserts that the farmland which is a grave owned by the deceased was solely succeeded to as the producer (or the heir to Australia under the former Civil Act) shall prove that before the death of the predecessor, the farmland has been appropriated for the expenses for the protection and management of the grave, and for the removal of the grave, adjacent to the profits derived from cultivation (see Supreme Court Decision 2005Da45452, Jul. 4, 2006, etc.).

Only on the basis of the statements of evidence Nos. 3 and 6, it is difficult to recognize the existence of a funeral and a grave of the decedent 2 as part of the real estate donated by the decedent 3 and 6, and each of the above real estate as a whole does not constitute a gold forest or a grave of the decedent. Rather, according to each of the statements of evidence Nos. 10, 11, 17 through 19, 21 through 23, 25, other land, including ( Address 10 omitted) shall be designated as a mountain place at the time of residence, and the relatives may recognize the fact that they sent a certain amount of money to the decedent and use it for funeral expenses and funeral management expenses.

Therefore, the other party 2's above assertion is rejected.

C) Other party 3: 134,135,856 won

(1) Each real estate donated to the decedent 1988 KRW 18,00,000, and KRW 47,500,000 as donated on May 20, 2004 KRW 47,500,000 as donated on May 20, 200 and KRW 2-A(4) as indicated in the table of Paragraph (b) is the special benefit of the counterparty 3. The value at the time of the commencement of the inheritance of the pertinent special benefit is as indicated in the table of special benefit property in attached Table 3 (in the case of cash proceeds, as seen earlier, it was calculated by using the GPE display on the conversion basis).

(2) As to the above, as otherwise alleged by the other party 2, the other party 3 asserts that all of the above real estate donated to the deceased by the deceased constitutes a gold forest and a grave farmland, and thus, it cannot be viewed as a special benefit. However, the evidence submitted by the other party 3 alone is insufficient to recognize it and there is no other evidence to acknowledge it. Accordingly, the other party 3’s assertion is not accepted.

D) Determination on other allegations

The other party asserts to the purport that since the other party 1 withdraws his deposit deposited in the account of the inheritee and delivered 10,000,000 won to the claimant 1 and 2, it should be viewed as the special profit of the pertinent claimant. The above claimant asserts to the purport that the claimant 1’s husband, non-party 4 and claimant 2 borrowed 10,000 won each from the other party 1 and repaid it in full to the other party 1. Thus, the above claimant cannot be viewed as the special profit received from the inheritee.

According to the evidence of evidence Nos. 8 and 9, the other party 1 transfers the sum of KRW 10,000,000 on December 12, 2008, and KRW 10,000,000 on December 15, 2010 to the claimant 2, and the claimant 2 transfers the sum of KRW 10,00,000 on August 25, 2010, and KRW 10,000,000 on November 12, 2010, and KRW 10,000,000 on November 5, 2012, 2010. However, since each of the above money was paid from the decedent 1, the other party’s assertion is not accepted.

4) Calculation of specific shares of inheritance

A) General Principles

The inheritance shall be calculated by adding the special profits of the inherited property and the co-inheritors at the time of the death of the inheritee, and the amount of the inheritance calculated by multiplying each statutory share of the co-inheritors by the statutory share of the inheritance, and then deducting the special profits from each statutory share of the inheritance. If the special profits of some inheritors exceed the statutory share of the inheritance, the special beneficiary does not have any obligation to return the excess special profits, but does not have any shares in the real estate of the inherited property. Therefore, the specific shares of the other inheritors are deemed to have no excess special beneficiary, and the remaining inheritors shall be calculated by dividing the excess special profits by the statutory share of the inheritance.

B) Deemed inherited property: 769,975,793 won (i.e., inherited property KRW 176,00,000 + Special proceeds of KRW 593,975,793)

(1) Inherited property: 176,000,000 won (=the instant apartment KRW 176,000,000)

(2) Special proceeds: KRW 593,975,793 (=party 1317,485,433 + Party 2142,354,504 + Party 3134,135,856)

C) The value of statutory inheritance by inheritor

(1) Other party 1: 177,686,721 won [30,00 won deemed inherited property = deemed inherited property 769,975,793 x statutory inheritance shares 3/13 (if less than won, hereinafter the same shall apply)];

(2) The claimant and the other party: KRW 118,457,814, respectively (i.e., deemed inherited property 769,975,793 x statutory inheritance share 2/13)

(d)the specific value of each heir’s share of inheritance taking into account special benefits;

(1) Claimants: The same value of each statutory share of inheritance is the same as that of each statutory share of inheritance without any special benefit

(2) Other party 1: -139,798,712 won (=177,686,721 won for statutory inheritance - Special Benefits 317,485,433 won)

(3) Other party 2:23,896,690 won (i.e., value of statutory inheritance 118,457,814 won - Special Profits 142,354,504 won)

(4) Other party 3: -15,678,042 (i.e., value of statutory inheritance 118,457,814 - Special Profits 134,135,856)

(e) disposal of excess special proceeds;

According to the above calculation, since both parties are beneficiaries of the special beneficiary, their specific shares of inheritance are zero, and the remaining co-inheritors share the excess amount in accordance with their respective statutory share of inheritance, and then the amount of the excess amount is deducted from the revised share of inheritance, and then the specific share of inheritance for each claimant is calculated by deducting the pertinent excess amount of special profit. However, as seen below, the statutory share of inheritance for the claimant, excluding the other parties, who are the special beneficiaries, is identical to 1/3 each, so the claimant shares the excess amount of special profit of the other parties equally at the ratio of 1/3, and the specific share of inheritance for the claimant after sharing the excess amount of special profit is 1/3.

(1) Disposition of special profits by other party 1: The claimant's share of 46,59,570 (=139,798,712) x 1/3, and less than Won)

(2) Disposition of excess special profits by other party 2: The claimant's share of KRW 7,965,563 (=23,896,690 x 1/3 and less than Won)

(3) Disposition of excess special profits by other party 3: Each claimant's share of KRW 5,226,014 (=15,678,042 x 1/3)

(4) The value of the claimant's specific share after the share of excess special proceeds

- KRW 58,66,67 (=18,457,814) - 46,59,570 won - 7,965,563 won - 5,226,014)

(5) Specific shares of the claimant

Each KRW 58,66,67,67 won/176,00,000 = 1/3 = 0.333 [Calculation Method: 176,00,000,001 won (= 58,66,667 won/ 3)]

5) Method of dividing inherited property

In full view of all the circumstances, such as the overall intent of the parties with respect to the method of division of inherited property revealed in the course of the examination of the case, the current status and value of inherited property, convenience of division, relationship between the petitioners, etc., it is reasonable that the apartment of this case is divided into co-ownership according to their respective specific shares

6) Determination on other party 2 and other party 3’s assertion

Although the above parties asserted to the purport that the period of extinctive prescription has lapsed one year from the time when they knew of the fact of infringement as a claim for the return of legal reserve of inheritance, it is apparent that the claimant's claim for this case is a claim for division of inherited property regarding the inherited property of the inheritee in light of the purport of the claim and reasons for the claim, it cannot be deemed that the extinctive prescription provision regarding the claim for the return of legal reserve of inheritance applies in filing the claim. Accordingly, this part of the other parties

7) Sub-determination

Therefore, it is reasonable to divide the apartment of this case into co-ownership by one-third share ratio.

3. Conclusion

Therefore, the claimant's claim for the division of the inherited property in this case shall be determined as above, and the plaintiff's claim for the determination of the contributory portion in this case shall be dismissed as it is without merit. The part of the claim for division of inherited property in the judgment of the court of first instance, which has different conclusions, shall be modified and determined as above. The part of the claim for determination of the contributory portion in the judgment of the court of first instance, which is consistent with this conclusion, is legitimate, and therefore, it is so decided as per Disposition by the assent of all participating parties 1.

[Attachment]

Forced mobilization of judge scopic (Presiding Judge)