Plaintiff (Attorney Park Jae-soo, Counsel for the plaintiff-appellant)

Defendant 1 and four others (Law Firm Han, Attorneys Gangnam-soo et al., Counsel for the defendant-appellant)

November 2, 2017

Jeonju District Court Decision 2015Da27103 Decided February 10, 2017

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the subsequent order of payment shall be revoked.

The Defendants shall pay to the Plaintiff 31,181,452 won and 12,600,000 won among them, 30% per annum from June 8, 2012 to the date of full payment, 15,051,00 won per annum from September 1, 2015 to November 23, 2017, and 5% per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The Defendants shall pay to the Plaintiff 31,181,452 won and 12,600,000 won each of them, 30% per annum from June 8, 2012 to the date of full payment, and 15,051,00 won per annum from September 1, 2015 to the date of full payment (the Plaintiff shall be deemed to have reduced the portion of the claim for damages for delay in the petition of appeal, and the purport of the appeal shall be deemed to have reduced the purport of the appeal) with interest of 15% per annum from September 1, 2015 to the date of full payment.

1. Facts of recognition;

The reasoning for the court’s explanation on this part is as follows: (a) except where Article 420 of the Civil Procedure Act provides that “○○○” of the first instance judgment shall be deemed as “non-party 3,” the corresponding part of the first instance judgment shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the cause of action

According to the above facts of recognition, the defendants, the successors of non-party 1, are obligated to pay each of the plaintiff KRW 31,181,452 [=(63,00,000 + KRW 75,255,00 + KRW 32,77,260 + KRW 32,77,260 + KRW 15,125,00) x 1/5] according to their respective inheritance shares, except in extenuating circumstances.

3. Judgment on the defendants' assertion

A. Determination on the assertion of payment in kind

The Defendants asserted that, with respect to the loan obligations of the Plaintiff amounting to KRW 63,00,000 on September 14, 2010, Nonparty 1 transferred the business right to the Music Hall located in the Jeonju-si ( Address omitted) to the Plaintiff, thereby making payment in kind.

In relation to the above loan obligations, according to the Gap evidence No. 1-2, the defendant's above assertion is without merit, although the non-party 1 entered into an agreement with the purport that "if the non-party 1 did not pay interest more than twice or the principal cannot be repaid within the above period, the non-party 1 succeeds to the plaintiff with the business license certificate and the business registration certificate for the above music directors and promptly deliver it to the plaintiff." However, the non-party 1 did not have any evidence to prove that the non-party 1 actually transferred the business right to the above music directors.

B. Determination on the assertion of qualified acceptance

The Defendants asserted to the effect that they are liable only within the scope of the property inherited from Nonparty 1 because they received the report by filing a qualified acceptance report with respect to the inheritance of Nonparty 1. Accordingly, the Plaintiff asserted to the effect that the Defendants are liable only within the scope of the property inherited from Nonparty 1, and that the Plaintiff made a simple approval since it was a disposal act with respect to the claim for compensation for tort damages inherited from Nonparty 1, such as receiving the repayment in relation to the claim for compensation for tort damages inherited from Nonparty 1. ② Defendant 1 and Defendant 2 borrowed a large amount of money from Nonparty 1 through Nonparty 2 at the funeral hall of Nonparty 1, and discussed about the above liability at the funeral hall of Nonparty 1 in accordance with the empirical rule. Therefore, the Defendants did not know that the Defendants did not know the fact that the inheritance obligation exceeds the inherited property without gross negligence. Accordingly, the above qualified acceptance is asserted as invalid.

According to the statements in Eul evidence Nos. 1 through 4, the Defendants filed a request for a qualified acceptance on September 25, 2015 with the Jeonju District Court 2015-Ma5087, Sept. 25, 2015 in relation to the inheritance of Nonparty 1, and the above report on qualified acceptance is accepted on March 31, 2016, respectively, and Defendant 1 and Defendant 2 accepted the above report on qualified acceptance on October 28, 2016.

However, even if a report on qualified acceptance by an inheritor is accepted by the family court, the judgment on acceptance of a report on qualified acceptance by the family court is recognized as satisfying the requirements for qualified acceptance, and it does not confirm its effect, and the final judgment on whether the effect of the qualified acceptance by inheritance is effective shall be ultimately decided in civil litigation in accordance with the substantive law (see, e.g., Supreme Court Decision 2002Da21882, Nov. 8, 2002). In addition, where an inheritor conducts a disposal act on inherited property, it shall be deemed that a simple approval has been granted if an inheritor performs a disposal act on inherited property, and it constitutes a disposal act on inherited property (see, e.g., Supreme Court Decision 2009Da84936, Apr. 29, 2010

이 사건에 관하여 보건대, 갑 제11 내지 16호증(가지번호 포함)의 각 기재, 제1심 법원의 전주지방법원 군산지원 공탁관, 인천지방법원 공탁관, 부산지방법원 공탁관에 대한 각 사실조회회신결과 및 변론 전체의 취지를 더하여 보면, ① 소외 1에 대한 폭행 및 살인과 관련하여, 소외 3과 소외 4, 소외 5(이하 ‘소외 3 등’이라 한다)가 전주지방법원 2014고합306호 로 기소된 사실, ② 소외 3 등은 2015. 4. 29. 위 형사사건과 관련하여 ㉠ 소외 3, 소외 5는 공탁원인사실을 ‘2014. 11. 22. 20:50경 소외 3은 손으로 소외 1의 뺨을 수회 때리고 소외 5는 피해자의 가슴을 발로 차 계단에서 넘어지게 한 후 소외 1을 주먹으로 수회 때려 공동으로 폭행하였으나 그 후 피해자가 사망하여 위 사망한 소외 1의 상속인들을 위한 손해배상액 5,000,000원 중 피공탁자의 상속분 1/5에 해당하는 1,000,000원을 현실 제공하였으나 수령을 거부하므로 공탁함’이라는 취지로 기재하여 피고들에게 각 1,000,000원을 공탁하고, ㉡ 소외 3, 소외 4는 공탁원인사실을 ‘소외 3은 2014. 11. 22. 21:07경 도검으로 소외 1의 우측 가슴부위를 1회 찔러 소외 1로 하여금 2014. 11. 22. 22:58경 전주시 덕진구에 있는 전북대병원에서 흉부자창으로 사망하게 하여 소외 1을 살해하고, 소외 4는 2014 . 11. 22. 21:05경 소외 3의 지시로 도검을 가지고 와 도검을 소외 3에게 건네주어 소외 3의 살해행위를 용이하게 함으로써 소외 3의 살인을 방조하여, 소외 1이 사망하여 위 사망한 소외 1의 상속인들을 위한 손해배상액 95,000,000원 중 피공탁자의 상속분 1/5에 해당하는 돈 19,000,000원을 현실 제공하였으나 수령을 거부하므로 공탁함’이라는 취지로 기재하여 피고들에게 각 19,000,000원을 공탁한 사실, ③ 피고들은 위 한정승인신고 수리 전인 2015. 6.경 소외 3 등에게 ‘피해자(소외 1)의 형제자매들은 동생(소외 1)과 소외 3의 관계, 소외 3의 처 등의 애절한 사죄를 받고서 소외 3에 대한 용서를 해주기로 형제자매들이 의견일치를 보았으며 동생 또한 저 세상에서 형인 소외 3이 하루빨리 석방되어 가족의 품에 돌아가기를 원하고 있다고 믿고 있습니다. 그래서 피해자의 형제자매들은 소외 3의 처로부터 300,000,000원을 수령하여 피고인에 대한 형사상 처벌을 원하지 않고 있으며, 피고인이 법이 허용하는 최대한의 관대한 처벌을 해주시기를 구합니다’라는 내용의 합의서를 작성하여 준 사실, ④ 피고 1은 2015. 7. 3., 피고 2, 피고 3, 피고 4, 피고 5는 2015. 7. 6. 각 위 ②항 기재 공탁금을 출급한 사실, ⑤ 피고들이 위 한정승인 신고 당시 첨부한 상속재산목록에는 소액의 예금채권 외에는 적극재산이 기재되어 있지 않은 사실을 인정할 수 있다.

However, the right to claim compensation for damages caused by the Defendant’s life infringement shall be deemed as property as well as the right to claim compensation for damages. The fact that the relationship between Nonparty 1 and the Defendants, the amount of the agreed amount paid, the criminal case against Nonparty 3, etc., and the fact that the deposit was caused by Nonparty 3, etc. is premised on inheritance. In addition, there is no circumstance to deem that the criminal agreement amount paid to the Defendants to Nonparty 1, the bereaved family members of Nonparty 1, in particular, paid the Defendants only in the name of consolation money for the Defendants, which are the victims of the criminal case. In addition, considering that the fact that the Defendants in criminal proceedings are paying compensation for damages only to the victims except for the damages against the victims of the criminal case, even if there is no particular stipulation in the agreement, it shall be deemed that the agreement amount of KRW 300,00,000 received by the Defendants is mixed with the Defendants’ right to claim compensation for damages against Nonparty

Therefore, the part of the Defendants’ claim for damages against Nonparty 1’s non-party 3, etc. among KRW 300,00,000, which was agreed and received by the Defendants with Nonparty 3, etc. around June 2015, constitutes an act of disposal in respect of inherited property, since the heir is paid the inheritee’s claim. Therefore, the Defendants are considered to have granted simple approval on Nonparty 1’s inheritance, and the validity of the above qualified acceptance cannot be recognized thereafter. The Plaintiff’s argument to this purport is with merit, and the Defendants’ assertion based on the premise that the qualified acceptance is valid is not acceptable without further need

4. Conclusion

Therefore, the Defendants are obligated to pay to the Plaintiff KRW 31,181,452 and KRW 12,600,000 among them (i.e., KRW 63,00,000 x 1/5) at a rate of 30% per annum, KRW 15,051,00 per annum, according to the agreement from June 8, 2012 to the date of full payment (i.e., KRW 75,25,000 x 1/5) within the scope to be sought by the Plaintiff with respect to the existence and scope of the Defendants’ performance obligation from September 1, 2015 to September 23, 2017, and KRW 5% per annum under the Civil Act until November 23, 2017, and KRW 15% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

Therefore, the judgment of the court of first instance is unfair with different conclusions. Thus, the court of first instance partially accepted the plaintiff's appeal and revoked it, and ordered the defendants to pay the money as above. The remaining appeal against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judge Lee Jae-woo (Presiding Judge)

(1) If an obligor’s assertion was accepted in the first instance trial by disputing the existence and scope of the obligation to perform, even if the argument was rejected in the appellate trial, the argument can be deemed reasonable, so in such a case, the interest rate for delay damages as prescribed in Article 3(2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings cannot be applied until the appellate court rendered a judgment pursuant to Article 3(2) of the same Act (see Supreme Court Decision 2013Da72664, Feb. 13, 2014).