[1] Whether taking into account the donation or testamentary gift in the calculation of the inheritance portion pursuant to Article 1008 of the Civil Act is limited to cases where testamentary gift or testamentary gift is actually received (affirmative), and in cases where one of the heirs separately inherited due to the renunciation of inheritance by the remaining inheritors, whether the sole inheritor may be deemed to have bequeathed or donated the inheritance shares from the renouncer of inheritance (negative)

[2] In a case where a declaration of renunciation of inheritance was made lawfully within a certain period after the commencement of inheritance, whether the waiver's right to claim the return of forced inheritance is naturally extinguished (affirmative)

[3] In a case where an inheritor filed a report on the renunciation of inheritance after he/she conducted a disposal act on the inherited property, whether the renunciation of inheritance has the validity (negative), and in a case where the inheritor, other than one of several inheritors, decides to waive the inheritance, but the inheritor, who renounced the registration of ownership preservation on the unregistered real estate owned by the deceased in accordance with the statutory inheritance under the name of all the inheritors, did not waive the inheritance, filed a registration of ownership transfer in the future of the inheritor, and then the subsequent renunciation of inheritance is accepted, whether such registration can be deemed as a disposal act on the inherited property under Article 1026 subparag. 1 of the Civil Act (negative)

[1] Articles 1008 and 1042 of the Civil Act / [2] Articles 1019(1), 1041, 1042, and 1112 of the Civil Act / [3] Article 1026 subparag. 1 of the Civil Act

[1] Supreme Court Decision 2003Ma988 Decided August 11, 2003 / [2] Supreme Court Decision 94Da8334 Decided October 14, 1994 (Gong1994Ha, 2971), Supreme Court Decision 98Da9021 Decided July 24, 1998 (Gong1998Ha, 2212) / [3] Supreme Court Decision 2009Da84936 Decided April 29, 2010 (Gong2010Sang, 987)

Appellant 1 and 3 others (Attorney Lee Sung-sung et al., Counsel for the plaintiff-appellant)

Nonparty 3 (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Order 201B2 dated September 14, 2011

All reappeals are dismissed. The costs of reappeals are borne by Re-Appellants.

The grounds of reappeal are examined.

1. Article 1008 of the Civil Act provides that “In cases where there is a person who received a gift or testamentary gift from an inheritee among co-inheritors, if the gift property does not reach his/her own share of inheritance, there exists a share of inheritance to the extent of the deficient portion.” However, in the calculation of the share of inheritance, the allowance for the gift or testamentary gift is limited to cases where the inheritor actually received testamentary gift or testamentary gift. Meanwhile, the renunciation of inheritance is retroactively effective at the time of the inheritance commencement (see, e.g., Supreme Court Order 2003Ma988, Aug. 11, 2003). Thus, it cannot be deemed that the report of renunciation of inheritance by the remaining inheritors other than one inheritor was accepted, and as a result, even if only one inheritor has a sole inheritance, such one inheritor’s testamentary gift or gift cannot be deemed to have been inherited from the inheritor.

The court below rejected the argument of the Re-Appellant (the other party to the trial, and the re-Appellant) that each of the above real estate constitutes the special benefit of the claimant (the other party to the trial, the re-Appellant, and the re-Appellant) on April 23, 1986, when the non-party 1, who was the deceased non-party 2 (hereinafter referred to as the "the deceased") of the deceased non-party 1, (hereinafter referred to as the "the deceased of this case"), renounced his share of inheritance on the property of the deceased non-party 1 through 11, as stated in the judgment of the court of first instance as the husband's inherited property of the deceased non-party 2 (hereinafter referred to as the "the deceased of this case").

Examining the reasoning of the judgment below in light of the above legal principles and the records, we agree with the above judgment of the court below just and there is no error of law by misunderstanding the legal principles as to special benefits due to renunciation of inheritance. In addition, where a legal reserve of inheritance is based on the premise that inheritance is inherited, and where a legal reserve of inheritance is legally declared within a certain period after the inheritance commenced, the right to claim the return of legal reserve of the person who renounced was extinguished as a matter of course (see Supreme Court Decision 94Da8334 delivered on October 14, 1994), and the grounds for re-appeal cannot

2. Article 1026 subparag. 1 of the Civil Act provides that an inheritor shall be deemed to have performed a simple approval when the inheritor has performed a disposal act on inherited property. Thus, even if a report on renunciation of inheritance has been accepted after the report on renunciation of inheritance, it is not effective as a waiver of inheritance (see, e.g., Supreme Court Decision 2009Da84936, Apr. 29, 2010). However, the legislative purport of the above provision is to confirm that an inheritor who disposes of inherited property has an ordinary intention of absolute acceptance of inheritance. If a qualified acceptance or renunciation is permitted after the disposal, it might be likely to cause damage to either inheritance obligee or joint heir, or a third party’s heir’s trust is required to protect the heir’s dispositive act, and if a registration of ownership preservation was made in the name of all the inheritors with respect to unregistered real estate owned by the deceased before such renunciation of inheritance was accepted, a report on renunciation of inheritance cannot be considered to have been made in accordance with Article 106 of the Civil Act.

The court below accepted the judgment of the first instance, and accepted the judgment of the deceased on February 1, 1986, and there were re-appellants who were the claimant and the deceased's spouse, and the deceased non-party 4 and their children who were their children. The inheritors of the first instance deceased except the claimant appear to have renounced inheritance on April 23, 1986 (referred to as "the first instance trial and the judgment of the court below, April 22, 1986" hereinafter). Meanwhile, the first inheritee owned the immovables No. 12 in the annexed Table 3 of the judgment of the first instance, which was unregistered real estate at the time of the death. The court below rejected the judgment of the court below on April 9, 1986 that the deceased and the claimant for the second instance owned the above immovables No. 12 in the annexed Table 3, which was non-party 30/65, each of the shares of the deceased, and that the deceased non-party 4 and the re-appellant did not recognize the ownership transfer registration of the deceased's's's's share for reason of renunciation.

3. The summary of the remaining grounds for re-appeal is clear that the decedent of this case had not renounced inheritance due to the death of the decedent of this case and that the person who incurred the extension or reconstruction costs of the building of this case is not the decedent but the decedent of this case. Thus, the order of the court below erred by the rules of evidence in violation of the rules of evidence and the judgment of the court below that recognized the contributory portion again by the claimant who had received a large amount of property from the decedent of this case. However, it is not just that the court below, which is a fact-finding court, erred in the selection of evidence or fact-finding which belongs to the exclusive authority of the court below, and it is not erroneous in the misapprehension of legal principles or in the misapprehension of legal principles as alleged in the grounds for re-appeal. The grounds

4. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)