A claim for recovery of inheritance against a named inheritor shall expire three years after the date of becoming aware of such infringement, or ten years after the date of the infringement of inheritance rights.

The plaintiff's claim is a lawsuit claiming recovery of inheritance. Therefore, the lawsuit in this case is unlawful as it was filed after the limitation period has expired.

Ulsan District Court 2013 Doz. 1705 Registration of Ownership Cancellation, etc.

Republic of Korea 1

April 9, 2014

May 7, 2014

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

1. Defendant A and Defendant B B shall implement each procedure for registration of cancellation of ownership transfer registration due to inheritance due to a division in consultation on July 27, 1992, which was completed on February 10, 199 by the Ulsan District Court No. 0000, which was completed on February 10, 1999 with respect to one half of each share of the real estate listed in the separate sheet 1 through 5 to the Plaintiff.

2. On February 10, 1999, Defendant A and Defendant B B fulfilled the registration procedure for cancellation of registration of ownership preservation, which was completed on February 10, 199 by the Busan District Court Central Registry No. 000 for each share of the real estate listed in the attached list 6 to the Plaintiff.

3. A. As to the Plaintiff’s share of 1/2 of the real estate listed in [Attachment 7] list No. 1000 on February 10, 1999, Ulsan District Court No. 000 for the registration of transfer of ownership;

B. The defendant Republic of Korea shall transfer the full share of all co-owners, completed on February 25, 199 by the Busan District Court of Ulsan on February 25, 199 with respect to the real estate listed in the separate sheet 7 in the separate sheet 5 to defendant Aa and defendant B;

C. On November 22, 2006, the defendant Aa and the defendant B transferred the ownership of the real estate listed in the separate sheet 7 attached hereto to the defendant Republic of Korea to the Busan District Court No. 8945 delivered on November 22, 2006.

shall comply with any of the registration procedures for cancellation.

1. Basic facts

A. C owned each real estate listed in the separate sheet (hereinafter referred to as “the instant real estate”) and died on July 27, 1992. The deceased’s heir is the Plaintiff, who is a spouse, a lineal descendant, Defendant A, Defendant B, andff.

B. On September 15, 1992, the Plaintiff, Defendant A, b,ff, andff entered into an agreement on the article of inherited property that distributes inherited property to the instant real estate, but the Plaintiff rejected the Plaintiff’s signature and seal.

C. Meanwhile, the heir, who did not reach an agreement on the division of inherited property due to the Plaintiff’s refusal to sign and seal, failed to voluntarily pay the inheritance tax, and on January 31, 1999, Ulsan District Tax Office imposed an inheritance tax of KRW 000,220,864 on theff, and imposed an inheritance tax of KRW 00,480,480,176 on theff.

D. Accordingly, on February 10, 1999, the Plaintiff, the Defendants, theff, and theff owned 16 real estate owned by the Deceased, and all taxes, such as inheritance tax, registration tax, and acquisition tax, arising therefrom, are liable and settled by Defendant A and Defendant B, and if the above tax is settled, the division of inherited property that would follow theff’s intention for the remaining property (hereinafter “instant division agreement”).

E. According to the instant partition agreement, Defendant A and Defendant B completed the registration of ownership transfer and the registration of ownership transfer on the real estate listed in the attached list 1 through 5 and 7, as to the real estate listed in the attached list 6.

Facts that there is no dispute over recognition basis, Gap evidence 1, 2, 3 (including paper numbers), 4, 5, 6, Eul evidence 1, 2, 3, 2, 2, 2, and 2, each entry of Eul evidence 1, 2, 3, 2, and 2, and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff

At the time of the commencement of inheritance, the Plaintiff was operating a gas station at the time of the commencement of inheritance, but the Plaintiff was faced with the crisis of bankruptcy if national tax attachment registration was completed due to the imposition of a large amount of inheritance tax, and thus, on February 1, 1999, the Plaintiff and Defendant Aa, B, A, A, and B prepared a written agreement on the division of inherited property with the content that the Plaintiff renounced inheritance and transferred the ownership of each of the instant real estate to Defendant A and Defendant B, and such agreement on the division of inherited property is null and void based on a false declaration of intention. In addition, according to evidence A No. 6 (written agreement on the division of inherited property), the agreement on division of inherited property is null and void under pure terms and conditions of suspension.

Therefore, as the ownership of each real estate of this case was transferred to Defendant Aa and Defendant B following the agreement on subdivision of this case which is null and void, each registration of ownership transfer and registration of ownership preservation under the name of Defendant Aa and Defendant B is null and void. The registration of ownership transfer under the name of Defendant B is also based on the registration of invalidity of cause and is null and void. Thus, Defendant A and Defendant B have a duty to cancel each registration of ownership transfer and registration of ownership preservation completed with respect to each real estate of this case, and Defendant B has a duty to cancel all ownership transfer registration.

B. The Defendants

(1) Defendant B, Defendant Aa

A) The Plaintiff’s claim constitutes an exercise of the right to recover inheritance under Article 999 of the Civil Act, and the right to claim recovery of inheritance should be exercised within the exclusion period of ten years from the date of infringement of the right to inheritance under Article 999(2) of the Civil Act. The instant lawsuit is unlawful as it was filed after the exclusion period expired.

B) Although the Plaintiff asserts that the instant agreement on division was made based on a false declaration of intention, and thus null and void, the Plaintiff would waive inheritance tax under the judgment that the Plaintiff could not cover inheritance tax with inherited property, and the said agreement was made by the Plaintiff’s declaration of intention.

C) The provision that “the Plaintiff’s claim as purely veterinary condition shall follow the mother’s will with respect to the remaining property” refers to the specific method of the division of inherited property, thereby constituting the content of a juristic act, and is not a purely veterinary condition.

(2) Defendant Republic of Korea

At the time when the Plaintiff and Defendant A, Defendant B,ff, andff made an agreement on the division of inherited property (Evidence A6), it is difficult to deem that the agreement was based on a false declaration of intent in collusion because the Plaintiff renounced inheritance and had an intent to deliberate on the Plaintiff to transfer ownership to Defendant A and Defendant B to resolve tax issues by transferring excessive inheritance tax imposition. Even if the agreement was null and void due to false declaration of intention in collusion, the Defendant Republic of Korea, who paid real estate for the payment of inheritance tax such as the Plaintiff and Defendant B, and Defendant A, cannot assert the invalidity of ownership transfer registration due to a false declaration of intention in collusion as a third party in good faith, as the Plaintiff cannot assert the invalidity of ownership transfer registration due to a false declaration of intention in collusion.

3. Determination on the legitimacy of the instant lawsuit

A. In cases where one of the co-inheritors, on his/her premise that he/she is a true inheritor, claims the cancellation, etc. of registration of real estate, which is an inherited property, against the reference inheritor, or a third party who acquired a right to inherited property or entered into a new interest from the reference inheritor, by asserting that he/she is the true inheritor, such claim constitutes a lawsuit for recovery of inheritance under Article 999 of the Civil Act, regardless of the cause of the claim (see, e.g., Supreme Court en banc Decision 90Da5740, Dec. 24, 1991; Supreme Court Decision 2009Da42321, Oct. 15, 2009). In cases where one of the co-inheritors completes the registration of ownership transfer of inherited real estate by agreement division, such agreement division is null and void without the consent of another co-inheritors (see, e.g., Supreme Court Decision 201Da32748, Mar. 17, 2011).

In addition, a title inheritor who becomes the other party to a claim for recovery of inheritance refers to a person who occupies all or part of an inherited property by referring to a person who has an external appearance that makes the other party to the claim for recovery of inheritance trust even though there is no legitimate inheritance right, and thus, in cases where the registration of ownership transfer is completed in the name of one of co-inheritors with respect to real estate that is inherited, unless there are special circumstances, such as that the registration is completed irrespective of the intention of the registered titleholder, if such registration is completed on the ground of inheritance, the registered titleholder constitutes a title inheritor (see, e.g., Supreme Court Decisions 94Da18249, Oct. 21, 1994; 96Da4688, Jan. 21, 1997; 2009Da41199, Jan. 14, 2010).

In addition, the claim for recovery of inheritance against the above mentioned reference heir shall expire three years from the date of becoming aware of the infringement, and ten years from the date of the infringement of inheritance rights.

B. As to the instant case, since the registration of ownership transfer and the registration of ownership preservation for each of the real estate listed in the separate sheet, which is inherited property, among co-inheritors on February 10, 1999, was completed due to the division under the name of Defendant A and Defendant B among co-inheritors, and each of the above claims against Defendant A and Defendant B for the registration of ownership preservation for inheritance due to division, is null and void as a false declaration of intention, and the agreement on division of inherited property between the Plaintiff and the Defendant A, Defendant B,ff is null and void as a false declaration of intention. Accordingly, the Plaintiff’s above claim constitutes a lawsuit for recovery of inheritance under Article 99(2) of the Civil Act, and as such, the Plaintiff’s claim for registration of ownership preservation for the registration of ownership preservation for the above real estate becomes invalid for three years from the date on which the infringement under Article 99(2) of the Civil Act became known, and as such, it is clear that the Plaintiff’s claim for the registration of ownership preservation and ownership preservation for the above real estate belongs to each of the Plaintiff’s co-inheritors and the above property rights.

Therefore, the instant lawsuit is unlawful as it was filed after the limitation period has expired.