[1] Where an executor exists, whether an executor is qualified to sue in a lawsuit related to the testamentary gift subject matter (negative)

[2] Whether an heir may become an executor pursuant to Article 1095 of the Civil Act in a case where a designated executor loses his/her qualification due to death, disqualification, or any other reason (negative)

[3] In a case where a new executor has not been appointed by the court after a designated executor was dismissed, whether the inheritor's standing to sue is recognized (negative)

[1] Since the executor has the right and duty to manage the property which is the subject of the testamentary gift and to perform all other acts necessary for carrying out the testamentary gift, in a lawsuit seeking cancellation of other registrations which obstruct the execution of the testament, the executor shall be held standing to sue as the subject of legal lawsuit. The executor shall perform his/her duties in a neutral position on matters that conflict with the inheritor within the necessary scope for carrying out the testament, so if there exists the executor, the executor shall be limited the right to dispose of the inherited property of the inheritor to the extent necessary for his/her will, and there is no standing to sue within the limited scope.

[2] Article 1095 of the Civil Act applies only when a testator does not designate or entrust the executor with the designation of an executor or when a person entrusted with the designation of an executor withdrawss from the designation of an executor. As long as a testator was designated by designation or entrustment with the designation of an executor, even if the executor lost his qualification due to death, disqualification, or any other reason, the inheritor cannot become an executor pursuant to Article 1095 of the Civil Act.

[3] If an executor is designated for testamentary gift, etc., the executor must appoint an executor even if the executor becomes disqualified due to death, disqualification, or any other cause. Thus, even if a new executor was not appointed by the court after the executor was dismissed, the right of disposal of inherited property of an inheritor to the extent necessary for the execution of a will is still limited, and the executor cannot be allowed to sue within the extent of such restriction.

[1] Article 1101 of the Civil Act / [2] Articles 1095 and 1096 of the Civil Act / [3] Articles 1096 and 1106 of the Civil Act

[1] Supreme Court Decision 97Da57733 delivered on November 26, 199 (Gong2000Sang, 16) Supreme Court Decision 2000Da26920 delivered on March 27, 2001 (Gong2001Sang, 994) / [2] Supreme Court Order 2007Du31 Delivered on October 18, 2007

Plaintiff 1 and two others (Law Firm White, Attorney Lee Gyeong-tae, Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorneys Seo Jae-sik et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2007Na35373 Decided February 3, 2009

The part of the judgment of the court below against the plaintiffs is reversed, and the judgment of the court of first instance is revoked. The lawsuit of this case is dismissed. All costs are borne by the plaintiffs.

The judgment on the grounds of appeal shall be made ex officio.

Inasmuch as an executor has the right and duty to manage property which is the object of testamentary gift and to perform all other acts necessary for the execution of a will, in a lawsuit seeking cancellation of other registrations which obstruct the execution of a will, the executor of the will shall be deemed to have standing to sue as the person in charge of legal proceedings. The executor of the will shall perform his/her duties in a neutral manner with respect to matters that conflict with the inheritor within the necessary extent for the execution of his/her will. In cases where the executor of the will exists, the executor's right to dispose of inherited property of the inheritor within the necessary extent for his/her will is limited, and there is no successor to the extent of such restriction (see Supreme Court Decision 200Da26920, Mar. 27, 2001). Meanwhile, Article 1095 of the Civil Act applies only to cases where the testator fails to designate or entrust the executor with the designation of the executor or the person entrusted with the designation of the executor, and even if the executor of the will was deceased or disqualified by the executor of the will for any other reason, the executor's becoming disqualified.

According to the records, on January 16, 1997, the deceased non-party 1 bequeathed the forest of this case to the non-party 2, and on the other hand, he designated the non-party 3 as the executor for the execution of his will. Meanwhile, the lawsuit of this case is seeking cancellation of the ownership transfer registration against the defendants on the grounds that the ownership transfer registration was completed without any cause in the future of the defendants as to the forest of this case. Thus, the standing to sue in this case is limited to the executor of the will, and the plaintiffs who are the deceased non-party 1's heir, are not standing to sue. Further, even if the non-party 3 was dismissed during the course of the appeal, the plaintiffs cannot become the executor pursuant to Article 1095 of the Civil Act, and even if the executor was not appointed by the court after the dismissal of the executor, it cannot be deemed that the plaintiffs, who are the inheritors, were not standing to sue in the final appeal.

If so, the lawsuit of this case is instituted by a party who has no standing to sue, and is inappropriate, so the court below should have revoked the judgment of the first instance which accepted the plaintiffs' claim and dismissed the lawsuit of this case, but dismissed the defendants' appeal.

Therefore, the part of the judgment of the court below against the plaintiffs is reversed. Since this case is sufficient for the Supreme Court to directly judge, the above part of the judgment of the court of first instance is revoked and the lawsuit of this case is dismissed. The total costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition

Justices Shin Young-chul (Presiding Justice)