2010Da29157 Legal Reserve of Inheritance

Plaintiff 1 and two others

[Defendant-Appellee] Defendant 1 and 2 others (Attorneys Cho Byung-jin et al., Counsel for defendant-appellee)

Defendant 1 and four others

[Defendant-Appellant] Plaintiff 1 and 2 others (Law Firm Lee & Lee, Counsel for defendant-appellant)

Daegu District Court Decision 2008Na10943 Decided March 24, 2010

May 9, 2012

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined.

1. Determination on the grounds of appeal Nos. 2 and 3

The scope of return of legal reserve of inheritance is based on the amount of legal reserve of inheritance calculated by multiplying the amount of the property received by multiplying the amount of the property of the deceased by the ratio of legal reserve of inheritance. In calculating the amount of legal reserve of inheritance, the market value of the property received by the person liable for return shall be calculated at the time of the commencement of the inheritance. If the property received as a donation is money, it shall be converted to the monetary value at the time of the commencement of the inheritance, and it shall be deemed the value of the donated property. It shall be reasonable to calculate it by the method of reflecting the fluctuation rate between the commencement of inheritance and the time of the commencement of the inheritance (see Supreme Court Decision 2006Da28126, Jul. 23, 2009, etc.).

According to the reasoning of the judgment below and the record, while calculating the value of the property, which is the basis of calculating the legal reserve of inheritance, the court below recognized the value of inherited property and donated property as the result of the real estate market price appraisal conducted at the time of September 4, 2007 or June 10, 2009 when several years have elapsed since that time, which was the time of commencing the inheritance of this case, as the time of commencing the inheritance of this case. Meanwhile, the court below acknowledged the value of inherited property and donated property for four times from March 30, 198 to November 11, 199 by Plaintiff 3, the decedent, as the deceased Nonparty 1, the deceased, as the living expenses, for four times from March 30, 198 to November 1, 199.

In light of the above legal principles, the lower court should have determined the scope of statutory reserve to be returned to the Plaintiffs by calculating the value of the inherited property and donated property, etc., which are real estate, based on the market price at the time of the commencement of the inheritance in this case, and by converting Plaintiff 3’s special profits into monetary value at the time of the commencement of the inheritance

Therefore, the court below erred by misapprehending the legal principles on the basis of calculating the value of property, which is the basis of calculating legal reserve of inheritance, thereby affecting the conclusion of judgment

2. Judgment on ground of appeal No. 1

According to the reasoning of the judgment below and the records, the defendants filed a lawsuit against the deceased non-party 1, the wife of the deceased non-party 1, and the defendant 1, on the grounds that the plaintiff's assertion, including the real estate that was donated to the defendant 1 and the property that was the basis for calculating the legal reserve of inheritance. The court below acknowledged the deceased's property that was registered in the name of non-party 2 as the property that the deceased donated to the defendant 1 without any particular reason, and the real estate that was transferred by the deceased's property that was transferred to the defendant 1 was registered in the name of non-party 1 or non-party 2, and the deceased's property transferred to the defendant 1 without any particular reason, was recognized as having donated the real estate to the defendant 1.

In addition, the court below acknowledged the real estate registration book, which appears to indicate the real estate No. 1 No. 1 of the annexed Table No. 1 of the judgment, as the inherited property of the deceased even though the Defendants received a donation from the deceased and completed the registration of ownership transfer, and recognized it as the inherited property of the deceased. The evidence, such as an appraisal report, presented by the court below as the basis for fact-finding, did not reveal the existence of the real estate and the market price of the attached Table No. 2 of the annexed Table No. 2 of the judgment, and there was no other evidence to acknowledge such facts,

Such measures by the lower court are erroneous as it did not exhaust all necessary deliberations by misapprehending the legal doctrine on the limitation of the principle of free evaluation of evidence. Therefore, the lower court should closely compare the allegations and evidence of the parties, and conduct further necessary hearings, thereby determining the scope of property, which serves as the basis for calculating legal reserve of inheritance.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young

Justices Shin Young-young

Justices Min Il-young

Justices Park Young-young