In the case of a third party’s donation of a real estate on which the right to collateral security was established in the future, whether it can be viewed as a “real obligation which the donee takes over or bears,” which is deducted from the value of the donated property, by deeming the obligation on collateral security as a discharge of obligation (negative), and whether the burden of proof has the burden of proving that the donee took over or repaid the obligation on collateral security as a discharge of obligation

In general, in the case of a donation of a real estate which was created as a collateral in the third party's future, it shall not be regarded as "real obligation to be taken over or borne by the donee" which is deducted from the value of the donated property as the immediate discharge of the collateral obligation, and in such a case, the donee has the burden of proving that the donee has taken over or has repaid the collateral obligation by his own possession.

Articles 29-4 (see current Article 47 of the Inheritance Tax and Gift Tax Act), 34 (see current Article 44 of the Inheritance Tax and Gift Tax Act), Article 2 (see current Article 10 of the Inheritance Tax and Gift Tax Act) and Article 40-5 (see current Article 36 of the Inheritance Tax and Gift Tax Act) of the former Inheritance Tax and Gift Tax Act (amended by the Presidential Decree No. 1518, Dec. 31, 1996); Article 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (see current Article 10 of the Inheritance Tax and Gift Tax Act);

Supreme Court Decision 86Nu859 delivered on May 12, 1987 (Gong1987, 999) Supreme Court Decision 96Nu3272 delivered on February 11, 1997 (Gong1997Sang, 812), Supreme Court Decision 97Da1273 delivered on June 24, 1997 (Gong197Ha, 2271)

Plaintiff 1 and one other

The director of the tax office.

Seoul High Court Decision 99Nu7755 delivered on November 24, 1999

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

In general, if a third party receives a donation of a real estate which has been established as a collateral in the name of the third party, it shall not be considered as a "real obligation which the donee takes over or bears," which is deducted from the value of the property. In such a case, the donee bears the burden of proving that the donee has taken over or discharged the collateral obligation, or that the donee has repaid the collateral by his own disposal.

Examining the evidence admitted by the court of first instance in comparison with the records, the court below did not have any evidence that the plaintiffs, even if the right to collateral security was established in the third party in each of the instant real estate donated by his father, he shall be deemed exempted from the obligation to collateral security, and even thereafter, there was insufficient evidence to deem that the above obligation was repaid by the plaintiffs' withdrawal. In comparison with the records, the court below's above measures are just, and there was no error of law by misunderstanding the whole degree of burden of proof or the violation of the rules of evidence as discussed above. There is no reason to discuss.

Therefore, all appeals are 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 on the bench.

Justices Song Jin-hun (Presiding Justice)