[1] The meaning of "donation in writing" under Article 555 of the Civil Code

[2] The legal nature of the rescission under Article 555 of the Civil Code (=Withdrawal) and whether the exclusion period is applied (negative)

[1] A written donation refers to a donation made in writing to the extent that a donor’s intent to give his/her own property to the other party in a contract of donation refers to a written donation made in writing to the extent that it can be clearly known through the document. Although the language and text of the written donation itself are not specified in the contract of donation, it shall be deemed as a written document under Article 555 of the Civil Act, if it is deemed that the written document is a document that directly expresses his/her intention of donation in consideration of

[2] The rescission under Article 555 of the Civil Code is a kind of special withdrawal, and it is different from the cancellation of its original meaning under Article 543 of the Civil Code. Thus, the limitation period of the formation right does not apply.

[1] Article 55 of the Civil Act / [2] Articles 543 and 555 of the Civil Act

[1] Supreme Court Decision 92Da18481 delivered on March 9, 1993 (Gong1993Sang, 1143), Supreme Court Decision 95Da5406 delivered on March 8, 1996 (Gong1996Sang, 1222), Supreme Court Decision 98Da22543 delivered on September 25, 1998 (Gong1998Ha, 2571), Supreme Court Decision 99Da4403 delivered on April 25, 200, Supreme Court Decision 2000Da32192 delivered on September 8, 2000

Plaintiff 1 and four others (Attorney Kang Jae-hun, Counsel for the plaintiff-appellant)

Defendant (Attorney Kang-ho, Counsel for defendant-appellant)

Gwangju High Court Decision 2002Na528 delivered on December 6, 2002

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. Regarding ground of appeal No. 1

A written donation refers to a written donation made to the extent that the donor’s intent to give his/her own property to the other party in a contract of donation is clearly recognizable through the document. Although the language and text of the written donation itself are not specified in the written donation contract, it shall be deemed as a written document under Article 555 of the Civil Act, if it is deemed that the written document is a document that directly expresses his/her intention of donation, in consideration of the circumstances leading up to the preparation of the written donation. (See Supreme Court Decisions 95Da5406 delivered on March 8, 1996, 98Da22543 delivered on September 25, 1998).

However, the evidence No. 11 (Waiver) is not a document written by Nonparty 1, a donor, but a document written by the defendant, and its content is also a waiver of the defendant's right to use and benefit equivalent to the defendant's share in the land of this case. Thus, it cannot be deemed that Nonparty 1 expressed his/her intention to donate 52/92 of the land of this case to Nonparty 2. The decision of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles on a written donation or on the interpretation of the disposal document.

2. As to the grounds of appeal Nos. 3 and 4

The court below held that the defendant cannot be recognized to have renounced the right to rescission under Article 555 of the Civil Act only with the statement of evidence No. 11 (Waiver). In light of the records, the judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to the waiver

The rescission stipulated in Article 555 of the Civil Act is a kind of special withdrawal, and it is different from the cancellation of its original meaning stipulated in Article 543 of the Civil Act. Thus, the exclusion period of the formation right is not applicable. Therefore, the decision of the court below which rejected the plaintiffs' assertion that the defendant's expression of intention to cancel a donation contract made ten years after the formation of the donation contract under the premise that the exclusion period of ten years is applied as the formation right. There is no error of law by misunderstanding the legal principles as to the exclusion period of the formation right.

3. Regarding ground of appeal No. 2

Article 555 of the Civil Act provides that "if the intention of donation is not indicated in writing, any party may rescind it," and Article 558 of the Civil Act provides that "the cancellation of a contract under the preceding three Articles shall not affect any part already performed," and Article 558 of the Civil Act provides that "the cancellation of a contract under the preceding three Articles shall not affect any portion already performed." If the deceased donated any portion of the portion of the portion of the real estate donated by a written declaration of intention which was not made before the death, and the registration of ownership transfer shall be made only for a portion of the portion of the portion of the portion of the portion of the real estate donated by the deceased, and if the remaining portion is deceased without completing the registration of ownership transfer, the inheritor who succeeded to the right and obligation pursuant to the donation contract may not rescind the declaration of intention of donation with respect to the portion of the portion already performed. However, the decision of the court below

4. Regarding ground of appeal No. 5

The court below rejected the judgment of the court below, on September 29, 197 or January 1, 1980, that the non-party 2 occupied 52 square meters of the land in this case as a gift from the non-party 1, and died on June 9, 2001, and thereafter, the non-party 1 and the non-party 2 occupied the plaintiffs, who own their wife, and the non-party 1 and the non-party 1 respectively, and the prescription period of possession was completed on September 29, 197 or January 1, 200. Thus, the court below rejected the judgment of the court below that the non-party 1's ownership transfer registration was not completed yet on September 29, 197 and the non-party 1's share in this case, which corresponds to the defendant's inheritance share 92/192, and that the plaintiffs did not exercise their right of ownership transfer registration due to the completion of the prescription period, and it did not err in the misapprehension of legal principles as to the non-party 252's share in this case.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)