[1] Whether funeral expenses are to be borne by each person who is the highest priority in accordance with the order of inheritance under Articles 1000 and 1003 of the Civil Act according to the ratio of statutory inheritance (affirmative in principle)

[2] The legal nature of the donation (i.e., conditional donation) and the method of disposing of the total sum of the donation received in a case where funeral expenses are returned to and out of a society

[1] Unless there are special circumstances, funeral expenses shall be borne by the persons who are in the highest priority in accordance with the order of inheritance under Articles 1000 and 103 of the Civil Code, and such principle shall be equally applied even if a specific inheritor renounces his/her inheritance (for example, even if the first-class inheritor renounces his/her inheritance, his/her obligation to bear the funeral expenses shall not be exempted. Although funeral expenses are treated as part of the inheritance expenses, they shall be considered in the process of the division of inherited property, and the burden of funeral expenses shall be understood to be derived from the relationship with the deceased, not from inheritance. Therefore, the above legal principle should be understood to mean that the funeral expenses may be considered in the process of the division of inherited property if the heir conforms to the person who bears the funeral expenses).

[2] It is reasonable to understand the donation of money on the condition that the donation should be first appropriated for funeral expenses. Thus, even if the amount of the donation received is different by the heir or the family member who is not the heir (hereinafter referred to as the “the recipient of the donation”), all of them should be appropriated for funeral expenses. This also applies to cases where the recipient of the donation is subordinate heir or does not qualify for inheritance. This is also the same as the donation received in relation to the deceased, separate from the surviving heir. This is also the same as the donation received in relation to the deceased. It is reasonable to view that such donation was given in proportion to the statutory inheritance applicable in cases where the person who bears funeral expenses succeeds to the funeral expenses according to the above principle. However, if the total sum of the donation of the donation is considered funeral expenses, it is reasonable to appropriate each amount to be appropriated as the percentage of the donation received by the recipient of the donation, and the remaining amount should be attributed to each recipient of the donation. In such cases, if the amount of the donation of the donation is not finalized, the remainder should be allocated equally regardless of the status of the recipient of the donation.

[1] Articles 100 and 1003 of the Civil Act / [2] Articles 554, 100, and 1003 of the Civil Act

[1] Supreme Court Decision 97Da3996 delivered on April 25, 1997 (Gong1997Sang, 1592)

Claimant

Other 1 and 4 others

1. The part of the claim against the other party 5 in the case of each of the instant appeals shall be dismissed.

2. All claims for determination of the contributory portion by the claimant against other party 1, 2, 3, and 4 are dismissed.

3. The deposit claims listed in Appendix 1 shall be divided into co-ownership of each one-fourth share by the other party 1, 2, 3, and 4.

4.The claimant shall pay 4,426,403 won to the other party 1, 2, 3, and 4 respectively.

5. Trial costs shall be borne by the claimant.

The contributory portion of the claimant shall be determined by 100%. The deposit claims in attached Form 1 shall be divided as owned by the claimant.

1. Basic facts

The following facts can be acknowledged in full view of the records and the overall purport of the examination of the case.

A. On November 10, 2007, the deceased Nonparty 1 (hereinafter “the decedent”) died. At the time of death, the deceased’s heir had a claimant between the other party who was divorced and the other party who was a child outside of marriage and the other party who was a child outside of marriage.

B. On December 15, 1972, the other party 5 was declared missing on April 21, 2009 on the ground that the period of the disappearance has expired after the claimant filed a petition for adjudication of disappearance and the trial was proceeded with by the Cheongju District Court Decision 2008 Madan197 decided March 15, 197.

2. Determination as to the claim against other party 5

The claimant is seeking the determination of the contributory portion and the division of inherited property against the other party 5. However, according to the above recognition, the other party 5 shall be deemed to have died before the death of the deceased upon the expiration of the period of disappearance on December 15, 1972. Thus, this is unlawful upon a claim filed against the deceased.

Therefore, the claimant's decision on the contributory portion and the claim for division of inherited property against the other party 5 should be dismissed in entirety as unlawful.

3. Determination as to the claim for entitlement to a contributory portion

The claimant, while living together with the decedent until the death of the decedent, supported the decedent by alone, and the inherited property of this case was actually acquired by the claimant or formed wholly by the claimant's contribution to the cemetery management expenses of the decedent. Thus, the claimant's claim that the contributory portion should be recognized as 100% of the inherited property. Thus, the claimant's claim that the contributory portion should be recognized. Thus, the claimant's claim that the contributory portion system under Article 1008-2 of the Civil Act is to promote substantial fairness among co-inheritors by considering the calculation of the contributory portion in cases where the co-inheritors especially supported the decedent or contributed particularly to the maintenance or increase of the decedent's property. In order to recognize the contributory portion, it is necessary to adjust the contributory portion for the sake of equity among co-inheritors, or specially contributed to the maintenance or increase of the decedent's inherited property. According to the records of this case, it is recognized that the claimant's contributory portion among the 24 children of the decedent's children outside of wedlock, but it is difficult to accept the claimant's claim specifically formed the contributory portion and its contribution.

4. Determination as to the claim for division of inherited property

(a) The inheritor and the statutory share in inheritance;

According to the above facts, 1, 2, 3, and 4 are the children of the inheritee, and the statutory shares of inheritance are 1/5 shares, respectively.

(b) Scope of inherited property subject to division;

According to the records of this case, the decedent held the deposit claims listed in attached Tables 1 and 2 at the time of death, and the appellant may withdraw all the deposit claims listed in attached Tables 2 and 2 at November 13, 2009 after the commencement of inheritance and recognize facts between them. According to the above acknowledged facts, not only the deposit claims listed in attached Table 1 but also the object of the deposit claims listed in attached Table 2 between the claimant's prior payment and the claimant's prior payment shall be the inherited property of this case (it is not stated in the purport of claim as to the deposit claims listed in attached Table 2, but it is reasonable to view that the whole inherited property is divided, unless it is clearly stated in the purport that the above deposit claims are inherited property and the claimant's claim for division of inherited property is limited to the property listed in the purport of claim as above. If it is not viewed as above, the inheritor's claim for division of inherited property shall be filed again until the date all inherited property is opened according to each inherited property division. Therefore, it is unfair that the claim for division of inherited property of this case shall also be subject to adjudication).

The claimant asserts that each financial account of the deposit claims listed in the separate sheet No. 2 is the so-called borrowed name account in the name of the claimant, and this is merely the assets of the claimant, so it cannot be viewed as an inherited property subject to division. However, the evidence presented in the record alone is difficult to recognize it. Therefore, the claimant's above assertion is without merit

In addition, the opposing party 2, inasmuch as the house (the name of Dong and lot number omitted) in the Cheongju-gu, the claimant and the decedent resided together, was leased by the decedent as the lease deposit amount of KRW 25,00,00,00,00, the above lease deposit is also divided, but there is no evidence to acknowledge it. Therefore, the opposing party 2's assertion is without merit.

(c) Method of partition;

(1) Attached Form 1 deposit claims

According to the above facts of recognition, the value of the specific inheritance shares of the other party except the claimant and the other party 5 is 3,200,000 won (=16,000,000 ± 5) each, respectively.

(2) The amount required for funeral expenses of the claimant

(1) Facts recognized.

According to the records of this case, the facts that the total amount of KRW 9,54,950 for funeral expenses was spent for funeral expenses in relation to the death of the decedent, and the total of KRW 1,880,00 for funeral expenses out of the transferred money received from the deceased's will of the heir (the claimant: KRW 880,000; KRW 140,000; KRW 140,000; KRW 140,000; KRW 710,000; KRW 2: the other party; KRW 150,000; KRW 4: the other party. According to the above facts found, the claimant can be deemed to bear at least KRW 7,64,950 out of funeral expenses (= KRW 9,54,950; KRW 1,80,000).

(2) Principles for bearing funeral expenses.

In light of the records, funeral expenses, barring any special circumstance, shall be borne by the most senior heir according to the ratio of each statutory inheritance under the order of inheritance stipulated in Articles 1000 and 1003 of the Civil Act, and such principle should be equally applied even if a specific heir renounces his/her inheritance (for example, even if the first-class heir renounced his/her inheritance, his/her obligation to bear funeral expenses is not exempted. Although funeral expenses are treated as part of the inheritance expenses and are considered in the process of the division of inherited property (see Supreme Court Decision 97Da3996, Apr. 25, 1997), it is reasonable to understand that the burden of funeral expenses arises from the relationship with the deceased, not from the inheritance, and therefore, it is reasonable to understand that the above legal principle can take into account funeral expenses in the process of the division of inherited property in cases where the heir is in accord with the person who bears the funeral expenses.)

On the other hand, it is reasonable to understand the donation of money on the condition that the donation should be appropriated first in funeral expenses. Thus, even if the donation amount received is different by the heir or the family member who is not the heir (hereinafter referred to as the “the recipient of the donation”), all of them should be appropriated first in funeral expenses, and this is also the case where the recipient of the donation is not a subordinate heir or the heir. This is also the same even if the donation amount received solely in relation to the deceased is a case where the recipient of the donation is not a subordinate heir or the heir. This is also the same as the donation received in relation to the deceased separately from the surviving person. This is reasonable to view that the donation amount was donated to the person who bears funeral expenses

However, if the total sum of the donation is considered funeral expenses, it shall be appropriated for each amount received by the recipient of the donation according to the ratio of the amount received by the recipient of the donation, and the remaining amount shall be reverted to each recipient of the donation. In such cases, if the amount of each recipient of the donation is not determined, it is right to distribute the remainder equally regardless of the status of the recipient of the donation of each donation.

On the other hand, if the total sum of the donation does not fall short of funeral expenses, all the donation received shall be appropriated for funeral expenses, and the remainder of funeral expenses shall be apportioned to funeral expenses according to the above principles, if they receive inheritance, according to the statutory share of inheritance applied to them.

③ Sub-committee

According to the above, since the donation received after the death of the deceased was not appropriated for all funeral expenses, and the claimant and the other party of this case are the first-class heir, the remaining 7,664,950 won, which should be appropriated as the donation, should be borne by the claimant and the other party in accordance with their respective statutory shares in inheritance, and all of them should be borne by the claimant and the other party. As such, the claimant has the right to receive 1,532,90 won (=7,664,950 ± 7,664,950) out of the funeral expenses paid by the other party 1,2,3, and 4, and thus, it should be considered in a specific method of division.

(3) An amount equivalent to KRW 33,796,965 of the deposit claims stated in the attached Form 2, as the claimant sought.

As seen earlier, the claimant withdrawn around November 13, 2009, immediately after the death of the decedent, and the sum of the principal and interest of the deposits listed in the attached Table 2, the sum of KRW 33,796,965, which are the objects of inherited property, should eventually be divided into inherited property and paid by the co-inheritors according to the specific inheritance shares.

Therefore, the claimant pays 6,759,393 won (i.e., 33,796,965 ±5) equivalent to 1/5 of each specific share of inheritance to others 1, 2, 3, and 4, and thus, he/she should consider in the specific share of inheritance.

(4) The final settlement amount;

Pursuant to the above, the claimant has a specific inheritance share equivalent to KRW 3,20,00 among the deposit claims in attached Form 1, but is obligated to pay KRW 6,759,39,393 for the inherited property ordered by the other party 1,2,3, and 4, while the claimant is entitled to receive KRW 1,532,90 for the funeral expenses borne by him/her, respectively, under the pretext of the funeral expenses borne by him/her. Thus, the settlement and calculation of the deposit claims in attached Form 2 shall be made equally divided into four other successors except the claimant, and the claimant shall pay KRW 4,426,403 [Attachment Form 2] to the other party 1,2,3,403 [Attachment 2].

5. Conclusion

Thus, the claimant's claim for determination of the contributory portion and for adjudication on division of inherited property of this case shall be dismissed as unlawful in the part of the claim against the other party 5, and the remaining claim for determination of the contributory portion among the claims shall be dismissed as it is without merit, and the claim for adjudication on division of inherited property shall

[Attachment 1 and 2] Deposit Claim: omitted

Judges Egropi (Presiding Judge)