In case where a qualified acceptance is made, whether an inheritance obligee may claim the preferential status of the inherent obligee who acquired a security right from a qualified acceptor with respect to inherited property (negative)

[Majority Opinion] If a court receives a report on a qualified acceptance, the liability of an inheritor on the inherited property of an inheritor is limited to inherited property, and as a result, an inheritance obligee cannot perform compulsory execution on the inherited property of an inheritor, barring any special circumstances. However, the Civil Act does not directly restrict the disposal of inherited property except for the case where an inheritor conceals or wrongfully consumes inherited property (Article 1026 subparag. 3). Therefore, the effect of a qualified acceptor’s disposal of inherited property arising from the foregoing limitation of liability arising from the qualified acceptance does not naturally restrict the disposal of inherited property. Furthermore, the Civil Act provides for the procedures for a qualified acceptor to repay to an inherited property to an inheritance obligee, etc. (Article 1032 below), but only on the basis of the qualified acceptance, there is no provision that grants a third party a real right on inherited property from a qualified acceptor to an inheritance obligee. Unlike the system of separation of inherited property under Article 1045 of the Civil Act, the Civil Act does not provide for the registration of inherited property from a third party and does not enable the inheritance obligee to assert the status of a qualified acceptance.

[Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, and Justice Kim Nung-hwan] The inherited property of a qualified acceptor is the property of the inherited property of the inherited property of the inherited property and its claim should be repaid and liquidated. In light of the opposite interpretation, it is equitable to deem that the inherent obligee of the qualified acceptor is unable to perform the compulsory execution against the inherited property as the property of the inherited property in preference to the inherited property of the inherited property, and it is consistent with the purport of the qualified acceptor system. As such, in the sense that the inherent obligee of the qualified acceptor cannot perform the compulsory execution against the inherited property in preference to the inherited property of the inherited property, the inherited property obligee has preferential rights to the inherited property. In addition, as the qualified acceptor still holds the ownership of the inherited property, if the qualified acceptor still holds the ownership of the inherited property and the inheritance obligee is able to enforce the compulsory execution against the inherited property, the inheritance obligee’s preferential rights to the inherited property should be maintained. Accordingly, the majority opinion deeming that the inheritance obligee’s preferential rights are lost by the registration of the inheritance obligee’s secured rights for the inherited property.

Articles 1005, 1026 subparag. 3, 1028, 1030, 1031, 1032, 1033, 1034, 1036, 1037, 1038, 1045, and 1049 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Roon, Attorneys Cho Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Daejeon High Court Decision 2007Na505 Decided October 11, 2007

The part concerning the defendant of the judgment below is reversed, and the case is remanded to the Daejeon High Court.

The grounds of appeal are examined.

1. Article 1028 of the Civil Act provides that “An inheritor may approve inheritance on the condition that he/she shall repay his/her obligation and testamentary gift to the extent of the property that is to be acquired by inheritance.” Accordingly, if the court receives a report on qualified acceptance, the liability of an inheritor for the obligation of the inheritee is limited to inherited property, and as a result, an inheritance obligee cannot perform compulsory execution against the inheritor’s inherent property unless there are special circumstances (see Supreme Court Decision 2003Da30968, Nov. 14, 2003).

However, the Civil Act does not have a provision that directly limits the disposal of inherited property, except for the case where a qualified acceptors who have made a qualified acceptance (hereinafter “qualified acceptors”) conceals or fraudulently consumed inherited property (Article 1026 subparag. 3), and thus, the disposal of inherited property by a qualified acceptors cannot be naturally restricted due to the foregoing limitation effect arising from the qualified acceptors’s disposal of inherited property.

In addition, the Civil Act provides that the qualified acceptor shall pay the inherited property to the inheritance obligee with the inherited property (Article 1032 below), but there is no provision that grants the inheritance obligee preferential status to the third party who acquires the real right from the qualified acceptor with respect to the inherited property. Unlike the property separation system under Article 1045 or below of the Civil Act, there is no provision that registers the inherited property with the qualified acceptor's inherited property and can oppose the third party.

Therefore, the preferential relationship between a person who has acquired a security right such as mortgage on inherited property from a qualified acceptor and an inheritance obligee is in accordance with the general principle under the Civil Act, and an inheritance obligee cannot assert the preferential status solely on the grounds of qualified acceptance. This does not change on the ground that the qualified acceptor was liable for the secured debt such as mortgage prior to the commencement of the inheritance.

2. According to the facts established by the court below, since the deceased non-party 1 (hereinafter "the deceased") died on November 7, 2002, his children among the legal inheritors of the deceased have renounced inheritance and reported the qualified acceptance on April 30, 200 by attaching the list of inherited property stated in the judgment below to Seoul Family Court, and the above court accepted it on May 29, 2003. The non-party 2 completed the registration of ownership transfer for the above real estate Nos. 1 and 2 of the above list of inherited property (hereinafter "each real estate of this case") on May 29, 2003, and on July 28, 2003, established a right to preferential reimbursement of KRW 10,000 for the defendant on the distribution date of the above real estate, and on the premise that the plaintiff, who lent money to the deceased, had the right to preferential reimbursement of KRW 20,000,000,000,000 to the plaintiff 20,000 won,000 won.

In light of the above facts in light of the legal principles as seen earlier, the Plaintiff cannot assert preferential status against the Defendant who acquired the right to collateral security from Nonparty 2, a qualified acceptor for inheritance regarding each of the instant real estate.

Nevertheless, the court below accepted the Plaintiff’s claim on the ground that the sale price of each real estate of this case should be preferentially distributed to the Plaintiff, who is an inheritance obligee, and decided to correct the distribution schedule as stated in its reasoning. In so doing, the court below erred by misapprehending the legal

3. Therefore, the part of the lower judgment regarding the Defendant is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges, except for a dissenting opinion by Justice Kim Young-ran, Justice Park Si-hwan, and Justice Kim Nung-hwan.

4. Dissenting Opinion by Justice Kim Young-ran, Justice Park Si-hwan, and Justice Kim Nung-hwan

A. If a report on a qualified acceptance is accepted, the inheritor succeeds to the rights and obligations of the inheritee from the time of the commencement of the inheritance (main sentence of Article 1005 of the Civil Act), but the liability for the inherited property is limited to the scope of the inherited property, so the inheritance obligee cannot enforce compulsory execution against the inherent property of the qualified acceptor. The Civil Act provides that the list of inherited property reported by the qualified acceptance shall be attached to the list of inherited property (Article 1030), the inherited property rights and obligations of the qualified acceptor shall not be extinguished (Article 1031), and the qualified acceptor shall give public notice to the general obligees and testamentary obligees within five days from the date of the qualified acceptance and public notice thereof within two months (Article 1032), and that the inheritance obligee may refuse the performance of the inherited property before the public notice period expires (Article 1033 of the Civil Act), and that the inherited property obligee shall have preferential rights to the inherited property in proportion to the claims of the inheritor and the qualified acceptor within the period, and thus, it is necessary to interpret part of the inherited property to the qualified acceptor's.

B. The qualified acceptance is limited to the scope of the inherited property, and the qualified acceptor does not exclude or limit the inheritance itself to the effect that the qualified acceptor succeeds to the rights and obligations of the inherited property. Therefore, in a case where the qualified acceptor disposes of the inherited property before the compulsory execution of the inheritance obligee commences, and loses its ownership, the inheritance obligee may not exercise rights similar to the right to set aside in bankruptcy proceedings, the right to set aside that the property is restored to the inherited property of the qualified acceptor by means of the revocation of fraudulent act, etc. and the property is subject to compulsory execution. In this sense, the disposal of inherited property by the qualified acceptor is valid, and the inheritance obligee may not enforce compulsory execution

However, as the qualified acceptor set up a security right, etc. on the inherited property with respect to the inherited property, if the qualified acceptor still holds the ownership on the inherited property and the inheritance obligee is able to enforce the compulsory execution on the inherited property, the preferential right of the inheritance obligee on the inherited property shall be deemed to be maintained as is. The reasons are as follows

First of all, even if a real right is established as such, it is still inherited property, and therefore, it is possible for an inheritance obligee to enforce compulsory execution, and as long as compulsory execution is permitted, it is in line with the purport of the qualified acceptance system.

In addition, as long as the argument and legal principles mentioned earlier are correct to deem that an inherent obligee of a qualified acceptor is unable to enforce a compulsory execution on inherited property, it is reasonable to view that the exercise of a security right by the person who has acquired a security right from the qualified acceptor also does not take precedence over the inheritance obligee. Since compulsory execution and exercise of a security right are different in the manner of obtaining the satisfaction of the claim, if the inherited property cannot be considered as a responsible property in relation to the inherent obligee of the qualified acceptor, it should be deemed as a principle that the relationship with the person who has established a security right, etc. among the inherent obligees is not the same as the responsible property, if the inherited property cannot be considered as a responsible property. In addition, in this sense, the preferential right of the inheritance obligee in the sense mentioned above shall be immediately caused by the acceptance of the report of a qualified acceptor. Since the qualified acceptor establishes a security right, there is no reason to extinguish

On the other hand, although the fact of qualified acceptance does not appear in the registry, the preferential rights of inheritance creditors should not be denied as a matter of course on the ground that the current fact of qualified acceptance is not shown in the registry. Under our legal system, where the public trust is not recognized in the registry, the entry of the registry in the substantive law is not disclosed as it is, and where both are different, it cannot be completely ruled out. Preferred rights under the substantive law include rights that are not entered in the registry, such as preferential rights to wage claims under the Labor Standards Act. Therefore, in the case of qualified acceptance, the preferential rights of inheritance creditors who are not registered in the registry are deemed to be maintained in the relationship with the person who is granted the preferential rights, etc. from the qualified acceptor. Meanwhile, in the case of qualified acceptance, it cannot be said that the preferential rights of inheritance creditors under the current legal system are indirectly published or publicly announced as to the real estate registered in the name of the original inheritee, or in the case of acquisition of real estate registered in the name of inheritance, there is room to deem that there is no reason to deem the inheritor’s waiver or neglect of the qualified acceptance.

In addition, Article 1049 of the Civil Act provides that "the separation of property shall not be effective against a third party unless it is registered with respect to real estate which is an inherited property." However, this is a provision on the separation of property which is a system separate from the qualified acceptance, and in the separation of property, since preferential rights of inheritance creditors are not recognized in the sense of priority, it is not possible to maintain the preferential rights of inheritance creditors because the fact of qualified acceptance is not registered in accordance with the above provision.

On the basis that the fact of qualified acceptance is not stated in the register, the preferential right of the inheritance obligee is denied, and that the person who has acquired the real right from the qualified acceptors is considered to have priority over the inheritance obligee at the end of this day. In full view of the legal doctrine, the Civil Act is a natural premise that the inherent obligee of the qualified acceptors cannot enforce compulsory execution against the inherited property in preference to the inheritance obligee, but it is not necessary to establish a way to ensure the safety of transactions due to the failure to separately prescribe the public disclosure method or procedures, such as entering the fact of qualified acceptance in the register. However, it is not a proper way to solve the problem. Rather, it is difficult to say that the Family Court’s judgment to accept the report of qualified acceptance in the family litigation rules, etc., as well as to entrust the registration of the fact of acceptance of the report of qualified acceptance or the fact of adjudication on the acceptance of the report, and to strengthen the disclosure method by making the registration agency register the fact.

Furthermore, Article 1026 subparag. 3 of the Civil Act provides that an inheritor shall be deemed to have granted simple approval when the inheritor conceals or fraudulently consumes inherited property after a qualified acceptance is made. Even if the qualified acceptors set up a security right, etc. on inherited property, this does not necessarily mean that an inheritance obligee can be fully relieved. In addition, in the case of a qualified acceptors, there is no particular proprietary property to a qualified acceptors. Moreover, it is limited to the case where an inheritance obligee has already secured an executive title by filing a lawsuit against a qualified acceptors for performance of an inheritance obligation against a qualified acceptors and by winning a judgment in favor of a final judgment or a judgment in favor of a provisional execution (hereinafter “final judgment, etc.”). However, it is not clear that an inheritance obligee is an inherited property. Therefore, even if an inheritance obligee’s liability for an inherited property is limited to inherited property, the inheritance obligee can not perform compulsory execution against the inherited property, i.e., a final judgment on inherited property acquired by the qualified acceptors, etc., within the scope of 1301.

Nevertheless, the Majority Opinion deeming that an inheritance obligee’s preferential right is lost by a registration of establishment of a real right, etc. for an inherited property for an inherent obligation of a qualified acceptor, is not to unilaterally protect an inherent obligee who has acquired a real right, etc. on inherited property from a person who has made a sacrifice of the inheritance obligee, but it is difficult to accept because it would reduce the qualified acceptance system of inheritance and undermine the meaning of institutional existence

C. In this case, the plaintiff is an inheritance obligee who has won the judgment of the provisional execution declaration ordering the non-party 2, who is a qualified acceptor, to perform the inheritance obligation within the limit of inherited property, and the defendant is a person who has obtained the right to collateral security from the above non-party 2 with respect to his own obligation, and the plaintiff has a preferential right against the defendant in accordance with the above legal principles. In the same purport, the court below is justified in ordering the correction of the distribution schedule with respect to the distribution of dividends to the defendant to the plaintiff, and there is no error in the misapprehension of legal principles as argued by the defendant

For the foregoing reasons, I do not agree with the Majority Opinion.

5. Concurrence with the Majority by Justice Yang Chang-soo and Justice Min Il-young

A. The Dissenting Opinion argues that the Majority Opinion unilaterally intends to protect the inherent creditors who have acquired security rights, etc. on inherited property from the qualified acceptors under the sacrifice of the inheritance obligee by denying the preferential rights of the inheritance obligee through the registration of establishment of security rights, etc. for the inherent obligations of the qualified acceptors, and thus, it is difficult to accept the Majority Opinion as a matter

Therefore, I would like to supplement the Majority Opinion with respect to the grounds presented by the Dissenting Opinion as follows.

B. First, in the Dissenting Opinion, according to the qualified acceptance of inheritance by an inheritor, inherited property is inherited property according to the qualified acceptance of inheritance obligee’s claim, and the inherited property is repaid and liquidated preferentially to an inheritance obligee pursuant to Article 1030 of the Civil Act, and in balance with the inheritance obligee’s inherent property, the inherent obligee of a qualified acceptor’s inherent property cannot be subject to compulsory execution against inherited property. Therefore, the inheritance obligee has preferential rights to inherited property.

However, the inheritance obligee takes precedence over the inherent obligee of a qualified acceptor’s inherited property by means of a qualified acceptor’s qualified acceptor’s qualified acceptor’s inherent obligee and the inheritance obligee are all general obligees, the inheritance obligee’s inherent obligee’s inherent obligee as to the inherited property of the qualified acceptor’s inherited property is nothing more than derived from the perspective of equity to make it impossible for the inherent obligee to perform compulsory execution as to the inherited property, and in this sense, from the limitation of the property subject to an execution or separation of the responsible property, the logic of “right to take precedence over the inherited property immediately to the inheritance obligee.”

If the Civil Act intends to completely separate the inherited property and the inherited property of a qualified acceptor and give preferential rights to the inheritance obligee in respect of inherited property as stated in the Dissenting Opinion, the Civil Act should have prepared a provision that limits the disposal of inherited property by a qualified acceptor or a legal means to deny the validity of such disposal to the inheritance obligee (e.g., avoidance power in bankruptcy proceedings or right to separation).

However, it is clear that the provision to this effect does not exist in the Civil Act, and the Civil Act only provides for the disadvantage of deeming a conditional acceptance (Article 1026 subparag. 3) for an inheritor’s act of reducing his or her property, or for the protection of inheritance obligee’s liability for damages arising from unfair repayment procedures, etc. (Article 1038). This means that the qualified acceptance system under the Civil Act only seeks to protect inheritance obligee by preventing an inheritor from suffering from bankruptcy due to an inheritor’s unlimited inheritance rather than the protection of inheritance obligee under the Civil Act. In Supreme Court Decision 2006Da23138 Decided Oct. 13, 2006, the Supreme Court did not raise a defense of the qualified acceptance in the claim for performance against an inheritor, and thus, takes a restrictive attitude in the protection of inheritance obligee by permitting a lawsuit by an inheritor after a final and conclusive judgment was already rendered.

Ultimately, the Dissenting Opinion acknowledges the effect of separation and independence of the property on inherited property at the same level as recognized in the bankruptcy procedure (Article 299, Article 438, etc. of the Debtor Rehabilitation and Bankruptcy Act) with respect to the remaining qualified acceptance, which is excessively excessive to protect the inheritance obligee beyond the original purport of the qualified acceptance system as above, and thereafter, seeks to derive preferential rights to the inherited property from the perspective of the inheritance obligee on the tax basis. Thus, it does not go against the provisions of the current Civil Act concerning the qualified acceptance and the ideology of the system

C. In addition, the Dissenting Opinion acknowledges the preferential rights of the inheritance obligee as seen earlier, while separating cases where a qualified acceptor disposes of inherited property before the compulsory execution of the inheritance obligee commences, loses ownership, or establishes a security right, etc., and recognizes the preferential status of the inheritance obligee by recognizing only the subsequent person’s estimated position as is, and does not recognize the former.

However, the case of transfer by a qualified acceptor who loses ownership of inherited property and the case of creation of mortgage that is not so, are different from the case of transfer by a qualified acceptor, and the basic nature of the act of disposal is the same in that it is a disposal act. In addition, the dissenting opinion's above discriminatory treatment is not easily explained solely on the ground that the act of creation of security right is a disposal act which requires more negative assessment in terms of the reduction of inherited property, the transferee's complete acquisition of rights is affirmed, and that there is a logic that limits his/her exercise of rights with respect to those who acquire security rights, which are less small rights, is a logic that limits his/her exercise of rights, and that it is a kind of error in the order of assessment as to the negative result.

In addition, the Dissenting Opinion argues that the inherited property could not become a responsible property for the inherent creditor of the qualified acceptor from the original date, and that the compulsory execution by the ordinary creditor and the exercise of the security right by the secured creditor are merely a difference in the method of obtaining the satisfaction of claims, but the acquisition of the security right by the qualified acceptors in respect of inherited property is a case where the disposal of the inherited property has been commenced, so it cannot be assessed at the same level as that of the general creditor

D. Meanwhile, the Civil Act does not require a public disclosure method on the facts of a qualified acceptance, except to allow a general inheritance obligee and a testamentary donee to report his/her claim or testamentary gift within five days from the date of the qualified acceptance (Article 1032), and in particular, the method of registering the fact of a qualified acceptance in the register, which is the method of public notification in principle, is not provided under the current legal system.

As can be seen, it is reasonable to avoid as much as possible harm to the safety of transaction as possible. In particular, in relation to real estate which is a major transaction object of the general trading sector, it should be very careful to recognize preferential rights in addition to what is separately prescribed by the Act. It is well known that wage claims under the Labor Standards Act and other small-sum tenants’ preferential rights under the Housing Lease Protection Act as stated in the Dissenting Opinion are all based on the law of gender.

In the Dissenting Opinion, since a qualified acceptor can establish a real right on inherited property only after the registration of inheritance is completed, the opposite contractual party can expect an indirect disclosure function in the process of confirming the registration of inheritance. A person who fails to confirm the fact of qualified acceptance fails to fulfill his/her duty of care, and there is room to deny the necessity of protection. However, under our inheritance law, which is provided in the form of inheritance as a principle of simple approval, it would be sufficient to expect an indirect disclosure function of the fact of qualified acceptance or demand the opposite contractual party to pay a duty of care to confirm the fact of qualified acceptance.

In this regard, it is necessary to pay attention to the fact that the Civil Code has the same provisions as Article 1049 with respect to the opposing power of registration in the property separation system, and that the qualified acceptance is silent in the qualified acceptance. In the case of separation of property by the court's order after going through the prescribed procedures, it is impossible to oppose a third party without registration. In the case of qualified acceptance which is a cargo and the fact of which is not entirely registered, the preferential status that can oppose the inheritance obligee cannot be acknowledged.

E. The Dissenting Opinion argues that the lack of disclosure methods or procedures such as the fact of qualified acceptance does not appear in the register should be supplemented so as to ensure the safety of transaction, and that such legislation or system is inconsistent with the Majority Opinion, and that it is difficult to deny the preferential right granted to inheritance creditors as well as to consider that the person who acquired the security right from qualified acceptors takes precedence over the qualified acceptors.

Of course, as pointed out by the Dissenting Opinion, in the present situation where the method or procedure of public notice of the fact of qualified acceptance is not properly maintained, the need to protect the transaction safety is left to the end, which makes it impossible to agree with the interpretation that grants preferential rights to inherited property to the inheritance obligee from the standpoint of the Majority Opinion. In addition, as asserted by the Dissenting Opinion, there is no theoretical theory even though legislative supplement should be made to improve the function of public notice of the qualified acceptance system.

However, under the current institutional reality before the completion of such a disclosure method, it is necessary to seek legal principles to harmonize the transaction safety consideration of the inheritance obligee’s disposal act with the protection of the legitimate interests of the inheritance obligee at the same time. In addition, if the inheritance obligee properly uses the system of separation of property under the Civil Act or the system of bankruptcy proceedings under the Debtor Rehabilitation and Bankruptcy Act with respect to inherited property, there is concern for opposing opinions, i.e., the outcome that the inherent obligee of the inheritor has to enjoy the profits not expected from the inherited property that the inheritor did not have assumed as the responsible property, can be properly prevented.

In light of these points, the attempt to derive a preferential right, which is neither a provision nor a provision in the law nor a provision in the register, rather than an interpretation theory, is not in harmony with the legal system of the Republic of Korea that requires the principle of disclosure in principle, and thus, it is difficult to agree to criticize the majority opinion that seeks to establish a post-right or a friendly relationship in accordance with the general principles under the Civil Act.

F. The Dissenting Opinion argues that even if the act of an inheritance obligee’s unreasonable reduction of property constitutes a legal ground for absolute acceptance under Article 1026 subparag. 3 of the Civil Act, if there is no particular proprietary property to the qualified acceptor, there may be many cases, and if the Dissenting Opinion states that the inheritance obligee can enforce compulsory execution only within the extent of inherited property in the order of a final and conclusive judgment in favor of the qualified acceptor, which is an executive title acquired against the qualified acceptor, the above simple acceptance cannot be immediately effective, and it is not possible for the inheritance obligee to fully recover from

However, the reason why an inheritor makes a qualified acceptance is ordinarily because of the excessive inheritance obligation and the need to protect his/her own property from the excessive inheritance liability. Thus, if an inheritor can exercise his/her right on the inherited property of a qualified acceptor, it would be general to benefit the obligee in the inheritance. In addition, the limitation on the right of execution stated in the Dissenting Opinion is limited to the area where the issue arises (in addition to the situation in which the opposing opinion was presented, if a cause falling under the statutory simple acceptance has already occurred at the litigation stage, the problem will naturally go through the public room of the parties within the procedure) and in the situation presented by the Dissenting Opinion, the opposing opinion will eventually lead to the obligee to bear a procedural burden, such as raising a separate lawsuit against a qualified acceptor and securing a decision on the execution of unlimited reservation with respect to the responsible property. However, this is only an inevitable result that occurs only after the judgment on the statutory simple approval was rendered, and such procedural burden is not an essential obstacle to the exercise of the right

G. In conclusion, the Dissenting Opinion argues that, although the liability of the inheritor is limited by the qualified acceptors, the act of disposal by the qualified acceptors is limited by the qualified acceptors, or even if the inherited property and the inherited property of the qualified acceptors are not completely separated by the inherited property, the inheritance obligee is intended to derive the preferential right from the interpretation of the inherited property, rather than the person who has acquired the real right from the qualified acceptors, and this does not fully consider the institutional meaning that the qualified acceptors system under the Civil Act is basically provided for the protection of the inheritor rather than the inheritance obligee, and furthermore, in the face of the conflict of interest between the interested parties, such as the change in the real right of the real estate or the preferential right of reimbursement, it would be contrary to the basic position to deal with the problem by the method of public disclosure such as the registration in principle

For the foregoing reasons, we cannot agree with the Dissenting Opinion.

Chief Justice Lee Young-ran (Presiding Justice)