Whether the right to claim the return of legal reserve of inheritance can be the object of creditor's subrogation right (negative in principle)

The right to claim the return of legal reserve of inheritance is a right entirely entrusted to his free decision-making for personal interest of the person entitled to legal reserve of inheritance. Therefore, the right to claim the return of legal reserve of inheritance can not be the object of the creditor's subrogation unless it is acknowledged that the person entitled to legal reserve of inheritance has a conclusive intent to exercise the right.

Article 404 of the Civil Act

Dongyang Social Co., Ltd. (Law Firm Maw, Attorneys Jeon Soo-tae et al., Counsel for the defendant-appellant)

Defendant (Attorney Choi Jin-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2009Na69786 decided November 4, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The Civil Act respects the freedom of disposal of the inheritee's property by taking effect on the legacy or gifts of the inheritee who infringed on the legal reserve of inheritance, and on the other hand, respects the freedom of disposal of the inheritee by exercising the right to claim the return of the legal reserve of inheritance. In this case, the person entitled to the legal reserve of inheritance can decide whether to exercise the right to claim the legal reserve of inheritance by comprehensively taking into account not only the relationship between the inheritee and the inheritee, but also the relationship with the donee and other inheritors. Thus, the right to claim the return of the legal reserve of inheritance of the deceased should be deemed to have the right to claim the return of the legal reserve of inheritance of the deceased as a right entirely entrusted to his free decision-making for personal interests of the person entitled to the legal reserve of inheritance of the deceased. Thus, the right to claim the return of the legal reserve of inheritance of the deceased of the deceased of

In light of the above legal principles and records, the court below is just in rejecting the plaintiff's claim in subrogation of the non-party's right to claim the return of legal reserve of inheritance against the defendant, and there is no error of law by misunderstanding the relevant legal principles

Therefore, the appeal is 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.

Justices Kim Nung-hwan (Presiding Justice)