[1] Whether the agreement on division of inherited property is subject to the exercise of the right to revoke the fraudulent act (affirmative)

[2] In a case where a special beneficiary exists among co-inheritors, the method of calculating the share of inheritance and in a case where monetary liabilities are jointly inherited, whether it can be the subject of division of inherited property (negative)

[3] Whether a debtor's monetary obligation inherited by a special beneficiary shall be included in the calculation of a specific share of inheritance where the agreement on division of the debtor's inherited property constitutes a fraudulent act (negative)

[1] Articles 406 and 1013 of the Civil Act / [2] Articles 1008 and 1013 of the Civil Act / [3] Articles 406, 1008, and 1013 of the Civil Act

[1] Supreme Court Decision 2007Da29119 Decided July 26, 2007 (Gong2007Ha, 1366), Supreme Court Decision 2007Da73765 Decided March 13, 2008 / [2] Supreme Court Decision 94Da16571 Decided March 10, 1995 (Gong195Sang, 1576), Supreme Court Decision 97Da8809 Decided June 24, 1997 (Gong197Ha, 2285)

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

Defendant (Law Firm Jung-jin, Attorneys Kim-ok et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2011Na21074 Decided February 10, 2012

The plaintiff's appeal is dismissed. The defendant's appeal is dismissed. The costs of appeal and the costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Judgment on the ground of incidental appeal by the Plaintiff

An appeal is intended to seek revocation or alteration of a judgment disadvantageous to himself/herself. Thus, even if the court below ordered the payment of the portion that the party did not request, it cannot be claimed as a party who is a benefit. The appeal against the judgment of the court below in full winning the judgment shall not be allowed as there is no benefit in the appeal (see, e.g., Supreme Court Decisions 86Meu1340, May 12, 1987; 2001Da76298, Jul. 22, 2003).

According to the judgment of the court below, it is clear that the court below modified the judgment of the court of first instance which dismissed the primary claim, and it is not possible to seek a modification in light of the legal principles as seen earlier. Thus, the plaintiff's incidental appeal is unlawful as there is no benefit in the appeal.

2. Judgment on the Defendant’s grounds of appeal

A. Regarding ground of appeal No. 1

The defendant's ground of appeal pointing this out is nothing more than a legitimate ground of appeal, since the defendant's selection of evidence and fact-finding which belong to the exclusive right of the court below

B. Regarding ground of appeal No. 2

In a case where a debtor in excess of his/her obligation has reduced joint security against a general creditor by giving up his/her right to his/her inherited property while holding a division consultation on inherited property, it constitutes a fraudulent act in principle (see Supreme Court Decisions 2007Da29119, Jul. 26, 2007; 2007Da73765, Mar. 13, 2008, etc.).

Among co-inheritors, a person who received a donation or testamentary gift of an inheritee from the inheritee has a share of inheritance only to the extent that the given property falls short of his/her share of inheritance (Article 1008 of the Civil Act). In cases where there are special beneficiaries among co-inheritors, a specific share of inheritance is calculated by revising the given statutory share of inheritance by considering such special benefits. In calculating such specific share of inheritance, it shall be calculated by adding the value of the property held by the inheritee at the time of the commencement of inheritance to the value of the pre-paid donation, and then by deducting the value of the donation or testamentary gift, which is an inheritance of the special beneficiary, from the value of the share of inheritance calculated by multiplying the value of the property held by each co-inheritors by the statutory share of inheritance by each co-inheritors (see Supreme Court Decision 94Da16571, Mar. 10, 195). Therefore, it is not reasonable to determine whether the content of performance, such as pecuniary obligation, is jointly inherited property divided to the co-inheritors and thus, it is not subject to the division of inherited property by the obligor (see Supreme Court Decision 97Da.

According to its adopted evidence, when Nonparty 1, the debtor, inherited the real estate of this case equivalent to KRW 600 million, which is the only property of Nonparty 2, which is the debtor, conducted in excess of the debt, the court below concluded a contract with other co-inheritors on division of inherited property, whereby the defendant would own the real estate of this case as the sole owner of the defendant upon the defendant's exemption from liability. After adding the value of the real estate of this case to Nonparty 1's special profit of KRW 40,625,00,00, the court below determined that the specific share of inherited property of Nonparty 1 would be 57,932,692,692, if the special profit is deducted from the value of the inherited property calculated by multiplying the value of the real estate of this case by the legal share of the non-party 1's inheritance, the non-party 1, who is in excess of debt, acquired only the profit of KRW 10,845,020 due to the exemption of the inheritance obligation of this case, and gave up the share of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine regarding the establishment of fraudulent act or the calculation of shares inherited by special beneficiaries.

3. Therefore, the plaintiff's incidental appeal is dismissed, and the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)