Method of returning legal reserve of inheritance

Korean Civil Code recognizes the system of legal reserve of inheritance and provides for the method of return of legal reserve of inheritance in Articles 1112 through 1118, but it is a normal method to return the property subject to inheritance or testamentary gift itself. Thus, if the person with the right to legal reserve of inheritance claims the return of legal reserve of inheritance by the method of return of the original property and such return of the original property is possible, the court should order the return of the original property according to the method requested by the person with the right to legal reserve of inheritance unless there are special circumstances.

Articles 1112 and 115 of the Civil Act, Article 203 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 2004Da51887 delivered on June 23, 2005 (Gong2005Ha, 1228)

Plaintiff 1 and three others

Defendant (Attorney Jeong-soo et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2005Na7137 Decided November 9, 2005

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

Korean Civil Act recognizes the system of legal reserve of inheritance and provides for the method of return of legal reserve of inheritance in Articles 1112 through 1118, but it is a normal method to return the property subject to gift or testamentary gift itself (see Supreme Court Decision 2004Da51887, Jun. 23, 2005). Thus, if the plaintiff claims the return of legal reserve of inheritance by the method of return of the original property and it is possible to return the original property, the court shall order the return of the original property according to the method requested by the plaintiff, unless there are any special circumstances.

Examining the reasoning of the judgment below in light of the above legal principles and records, in this case where the plaintiffs who were the successors due to the death of the non-party 1, who were the deceased non-party 2, were to exercise the right to claim the return of legal reserve of inheritance against the defendant who received a donation from the non-party 1, who was the deceased non-party 1, as the result of the death, ordered the execution of the procedures for the transfer of ownership of each real estate as the return of the original property in accordance with the plaintiffs' claim method, and there is no error of law such as misunderstanding of legal principles as to

In addition, as alleged in the grounds of appeal, the fact that the plaintiffs' share to be returned is nothing more than 6% of the real estate in the judgment is not contrary to the good faith principle, and thus, the court below's rejection of the plaintiffs' claim is just and it is not erroneous in the incomplete hearing.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)