A. Legal nature of a lawsuit against a person who assumes the true inheritor as a content of dispute over the existence of the right of inheritance (=action for recovery of inheritance)

B. Where a claimant dies during the lawsuit for recovery of family inheritance, whether the heir’s taking over the litigation procedures by the heir (negative)

A. A lawsuit against a person who is referred to as a true inheritor by a third party on the entry in the family register against the true inheritor shall not be considered as a lawsuit over the invalidity of inheritance as the content of a dispute over the existence of the right of inheritance under Article 982 of the Civil Code.

B. The right to claim the recovery of family inheritance is a right exclusively belonging to the deceased person of the inheritor whose right of inheritance has been infringed and naturally extinguished due to his death, and his inheritor does not inherit it. In addition, even though Article 54(1), Article 55, and Article 28 of the Personnel Litigation Act recognizes the acceptance of a lawsuit as to the lawsuit for the invalidation of inheritance, which is a general form of lawsuit correcting the cause of invalidation of inheritance, while Article 982 of the Civil Act provides the inheritor and his legal representative as the claimant for the lawsuit for the recovery of inheritance, which is a special form of lawsuit, and does not have any provision as to the acceptance of the lawsuit, in view of the fact that Article 982 of the Civil Act provides that the heir and his legal representative as the claimant for the lawsuit for recovery of family inheritance, his heir cannot take over the lawsuit filed by the deceased person for the reason that his own inherent right of inheritance has been infringed.

Article 982 of the Civil Act, Article 54(1)(b) of the Personnel Litigation Act, Articles 55 and 28

[Plaintiff-Appellee] Defendant 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellee)

Claimant (Appellant) Attorney Fixed-at-Law, Counsel for the appellant

appellees

Seoul High Court Decision 89Reu770 delivered on November 3, 1989

The appeal is dismissed.

The costs of appeal shall be borne by the appellant.

As to the ground of appeal by the appellant

According to the records, while seeking confirmation of invalidity of the family inheritance against the deceased non-party 1 as to the claim of this case, the deceased non-party 1 died on May 4, 1984, and on May 15, 198, the defendant, who is the south of the deceased, was registered on the family register as the cause of the claim. However, the defendant was born between the plaintiff non-party 2 and the deceased non-party 3, and the plaintiff re-born with the plaintiff non-party 2, and the plaintiff non-party 2 was born with the deceased non-party 1 and the plaintiff's father, not the plaintiff non-party 1, who was not the deceased non-party 1, and thus, the plaintiff is registered as the plaintiff non-party 1 in the family register, and thus, the plaintiff's right of inheritance of the deceased non-party 1, who is the true father of the family register, was infringed on the plaintiff's right of inheritance. Thus, the true third party's heir on the family register is not the plaintiff's title 982.

On the other hand, the right to claim for recovery of family head's inheritance is a right exclusive to the deceased person whose inheritance right is infringed, and naturally extinguishs upon the death of his heir, and his heir does not inherit it. In addition, even though Article 982 of the Civil Code provides for the heir and his legal representative as the claimant with respect to the lawsuit for recovery of inheritance which is a general form of lawsuit to correct the cause of invalidation of inheritance under Articles 54(1), 55, and 28 of the Personnel Litigation Act, even though Article 982 of the Civil Code recognizes the acceptance of the lawsuit as to the lawsuit for recovery of inheritance, which is a special form of lawsuit, and does not have any provision as to the acceptance of the lawsuit, the heir may not take over the lawsuit filed by the deceased claimant for the reason that his own inherent inheritance right is infringed, in case where the claimant dies during the lawsuit for recovery of family head's inheritance.

In the same purport, the court below is just in holding that the taking-off of the lawsuit of this case was terminated on August 4, 1988, because it is improper that the taking-off of the lawsuit of this case was the date of the deceased claimant's death, and therefore, it cannot be said that there was an error of law by misunderstanding the legal principles as to lawsuits for recovery of inheritance and for invalidation of inheritance, lawsuit for invalidation of inheritance, and lawsuit taking-off, which affected the conclusion of the judgment of the court below. Further, the purport of the judgment of the court below is that the taking-off of the lawsuit of this case can immediately file a claim for recovery of inheritance against the deceased and the deceased without going through a lawsuit on the family relation between the deceased and the deceased, and that the lawsuit of this case is unlawful on the ground that the taking-off of the lawsuit of this case is unlawful on the ground that the succession of the claim for recovery of inheritance of Australia as a result of denying the inheritance of the deceased claimant's death. Thus, the court below did not err by misapprehending the legal principles as to inheritance of Australia as the deceased non-party 1.

Therefore, the appeal is 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.

Justices Yoon Young-young (Presiding Justice)