In a case where an inheritor was aware of the commencement of inheritance before May 27, 1998, and a lawsuit as to his inheritance obligation was filed before the first decision of inconsistency with the Constitution as to Article 1026 subparag. 2 of the Civil Act before the amendment, and the second decision of inconsistency with the Constitution as to part of Article 1026 subparag. 3 of the Addenda of the Civil Act (the second decision of inconsistency with the Constitution as to Jan. 14, 2002) has not been concluded and is pending before the court, the case holding that, by applying Article 4 subparag. 1 of the Addenda to the amendment after the above decision of inconsistency with the Constitution as mentioned above, if the inheritor was unaware of the inheritance obligation within the period as prescribed in Article 1019(1) of the Civil Act without any gross negligence, the effect of simple

In a case where an inheritor becomes aware of the commencement of a new inheritance before May 27, 1998, and a lawsuit on his inherited obligation is filed before the amendment, and the first ruling of inconsistency with the Constitution was filed before the Constitutional Court on August 27, 1998 with respect to Article 1026 subparagraph 2 of the Civil Act (amended by Act No. 6591 of Jan. 14, 2002), and a part of Article 1026 subparagraph 3 of the Addenda (amended by Act No. 6591 of Jan. 14, 2002) was pending before the Constitutional Court's second ruling of inconsistency with the Constitution was not concluded at the time of the second ruling of inconsistency with the Constitution of the Constitutional Court on January 29, 2004, the court ruled that the effect of the above amendment of the Civil Act can be excluded simply by applying Article 1019 (1) 1 of the Addenda (amended by Act No. 7765 of Dec. 29, 2005).

Articles 1019(3) and 1026 subparag. 2 of the Civil Act, Addenda ( January 14, 2002)(3) and (4) (amended by Act No. 7765 of Dec. 29, 2005) of the Civil Act, Article 47 of the Constitutional Court Act

Constitutional Court Order 96Hun-Ga22, 97Hun-Ga2, 3, 9, 96Hun-Ba81, 98Hun-Ba24, and 25 decided August 27, 1998 (Hun-Ba29, 693), Supreme Court Decision 99Da3358 decided Apr. 2, 2002 (Gong2002Sang, 1059), Supreme Court Decision 200Da62476 decided May 14, 2002 (Gong200Ha, 1389), Supreme Court Decision 202Da2182 decided Nov. 8, 2002 (Gong203Da45559 decided Mar. 14, 2003)

The Korea Technology Finance Corporation (Attorney Park Jong-dae, Counsel for defendant)

Defendant 1 and four others (Attorney Park Jae-chul, Counsel for the defendant-appellant)

Seoul District Court Decision 2002Na48688 delivered on April 2, 2003

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

Article 1026 subparag. 2 of the former Civil Act (amended by Act No. 6591, Jan. 14, 2002; hereinafter referred to as the "former Civil Act") provides that "Unconformity with the Constitution" (hereinafter referred to as the "First Amendment to the Constitution") shall be declared on August 27, 1998, the legislators shall be amended by Act No. 6591, Jan. 14, 2002; and Article 1019(3) of the Civil Act shall be newly established within 7 months prior to the commencement of inheritance within 9 months prior to the commencement of inheritance without knowing that the heir's debt exceeds the inherited property. However, if the heir did not know of the fact that the inheritance debt exceeds the inherited property within 10 months prior to the commencement of inheritance, it shall be excluded from the newly amended Civil Act No. 970, Dec. 29, 2005; however, if the heir did not know the inheritance debt exceeds the inherited property within 10 months prior to the commencement of inheritance, 197 months prior to the amendment.

Recognizing the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that the non-party who was liable for reimbursement against the plaintiff died on December 19, 192 and succeeded to the deceased's reimbursement obligation. Based on the circumstances stated in its holding, the court below rejected the Defendants' assertion that the above retroactive effect should be acknowledged on the grounds that the Defendants' claim for inconsistency with the Constitution was unconstitutional as of the time when the first ruling of inconsistency with the Constitution became final and conclusive. However, the court below rejected the Defendants' assertion that the Defendants' claim for inconsistency with the Constitution was unconstitutional within 3 months from the date before the amendment of the Civil Act was made, and that the Defendants' claim for inconsistency with the Constitution was not made within 10 months prior to the amendment of the Civil Act, and that the above provision of the 19th amendment of the Civil Act was still unconstitutional and thus, the Defendants' claim for inconsistency with the 19th amendment of the Civil Act, which became final and conclusive before the first amendment of the Civil Act, and that the above provision of the 19th amendment of the Civil Act was rejected.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)