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(영문) 대법원 1994. 10. 21. 선고 94다18249 판결
[소유권이전등기말소][공1994.12.1.(981),3072]
Main Issues

A. In a case where other co-inheritors claims cancellation, etc. of the registration of real estate, which is inherited property, regardless of the cause of the claim, whether it can be deemed as a lawsuit for inheritance recovery under Article 999 of the former Civil Act

(b) The case holding that the plaintiff's claim for cancellation by a co-inheritors, among co-inheritors, constitutes a lawsuit for recovery of inheritance in light of all the circumstances, such as where the registration of transfer of ownership in the name of the defendant among the co-inheritors was made by a third party, but it is difficult to deem it entirely made regardless

(c) Whether the right to claim inheritance recovery expires, even where a right to inheritance is infringed after ten years have elapsed from the commencement date of inheritance;

Summary of Judgment

A. Under the premise that the heir is a true heir with respect to the inheritance of property, the claim for the reversion of property rights, such as the right of share arising from the inheritance, and the claim for the cancellation, etc. of the registration of the real estate, which is the inherited property, is filed against some co-inheritors who only have succeeded to the property, so long as the claim that the ownership or the right of share belonged to the inherited property is based on the inheritance, regardless of the cause of the claim, it shall be deemed as a lawsuit for the recovery of inheritance under Article 999 of the former Civil Act (amended by Act No.

B. The case holding that if the plaintiff and the defendant delivered a certificate of the personal seal impression and a certificate of the seal impression for division to a third party, and the third party voluntarily completed the registration of the ownership transfer on the ground that the part corresponding to the plaintiff's shares in the transfer registration is null and void due to the agreement division, and if they seek the cancellation of the registration on the part, the registration of ownership transfer cannot be deemed to have been made at all by the third party regardless of the defendant's intention, and the defendant also contests the plaintiff's right to the inheritance by asserting that the inherited property was owned solely by the defendant due to the waiver of the plaintiff's succession, the claim for cancellation cannot be deemed to have been filed on the ground that the registration of ownership transfer in the defendant's name was made by a third party.

C. The provision on the extinction of the right to recover inheritance under Article 982(2) of the same Act set a short-term exclusion period in order to promptly repeat the confirmation of legal relations as to inheritance. Therefore, even if there was an infringement of the right to inheritance after the lapse of ten years from the commencement date of inheritance, the right to claim the recovery of inheritance shall be deemed extinguished due to the lapse of the exclusion period of ten years

[Reference Provisions]

Articles 99 and 982(2) of the former Civil Act (amended by Act No. 4199, Jan. 13, 1990)

Reference Cases

A.C. Supreme Court en banc Decision 90Da5740 delivered on December 24, 1991 (Gong1992,635). Supreme Court Decision 92Da11046 delivered on October 9, 1992 (Gong1992,3108) 92Da3083 delivered on February 26, 1993 (Gong1993Sang, 1080). 93Da24490 delivered on March 11, 1994 (Gong194Sang, 1171).

Plaintiff-Appellant

Plaintiff

Defendant-Appellee

Defendant-Appellee et al., Counsel for the defendant-appellant

Judgment of the lower court

Incheon District Court Decision 93Na6393 delivered on February 25, 1994

Text

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Reasons

We examine the grounds of appeal.

In a case where a claim for the cancellation, etc. of a registration of real estate which is inherited property is made against some co-inheritors who have succeeded to the property on the premise that they are true inheritors with respect to the inheritance of property, if they claim the cancellation, etc. of the registration of real estate which is inherited property, then the claim that the ownership or the right of share belongs to the inheritance is a cause of inheritance, regardless of the cause of the claim, it shall be deemed as a lawsuit for the recovery of inheritance under Article 999 of the Civil Act (amended by Act No. 4199 of Jan. 13, 1990; hereinafter the same shall apply) (refer to the Supreme Court en banc Decision 90Da5740 of Dec. 24, 1991; 92Da3083 delivered on Feb. 26, 1993).

According to the records, although the plaintiff and the defendant jointly inherited the land of this case, they forged relevant documents by using a certificate of the personal seal for division and a seal imprint delivered by the plaintiff and the defendant, and thereby, have completed the registration of ownership transfer for the sole reason of a separate inheritance under the name of the defendant. Among the registration of ownership transfer, the part corresponding to the plaintiff's inheritance share in the registration of ownership is deemed null and void and seek the cancellation of the registration of the part of the registration. Accordingly, since the plaintiff asserted that the right to share in the land of this case was attributed to the plaintiff on the ground of inheritance and only he succeeded to the land of this case, it shall be deemed to fall under the lawsuit for recovery of inheritance under Article 999 of the Civil Act.

The theory of lawsuit is invalid because the above non-party, who is a third party who does not have any relation with the inheritor, has forged relevant documents, and thus, the lawsuit of this case is not a lawsuit for recovery of inheritance. However, even according to the plaintiff's argument itself, it is difficult to deem that the registration of ownership transfer was made in the name of the defendant alone regardless of the defendant's intention, since the defendant issued the above non-party a certificate of personal seal impression to consult and divide, and even according to the plaintiff's above assertion itself, the registration of ownership transfer was made in the name of the defendant alone. Thus, according to the records, the defendant asserts that the land of this case was owned by the defendant as a result of the waiver of the plaintiff's inheritance, and the plaintiff's ownership transfer registration is made by the above non-party, which is the third party, and therefore, it cannot be deemed that the lawsuit of this case does not constitute the lawsuit for recovery of inheritance. The theory of lawsuit is inappropriate to be invoked in this case by different cases.

In addition, since the provision on the extinction of the right to claim for recovery of inheritance under Article 982(2) of the Civil Act established a short-term exclusion period in order to make the confirmation of legal relations as to inheritance soon possible, even if there was an infringement of the right to inheritance after the lapse of ten years from the commencement date of inheritance, the right to claim for recovery of inheritance should be deemed extinguished due to the lapse of the exclusion period of ten years (see, e.g., Supreme Court en banc Decision and Supreme Court Decision 87Meu2311, Jan. 17, 1989).

In this regard, the court below was justified in holding that the plaintiff's lawsuit of this case constituted a lawsuit for recovery of inheritance, and rejected the lawsuit after the expiration of the exclusion period of 10 years from the commencement date of inheritance, and there is no error of law by misapprehending the legal principles as to the lawsuit for recovery of inheritance of property, such as theory of lawsuit.

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 on the bench.

Justices Ahn Yong-sik (Presiding Justice)

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심급 사건
-인천지방법원 1994.2.25.선고 93나6393
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