[1] Whether Article 440 of the Civil Act that recognizes the effect of interrupting prescription against the principal obligor as to the surety can also be applied to the prescription period after the interruption of prescription (affirmative)

[2] Whether a decision of provisional seizure against a deceased person as an obligor can be recognized as a ground for interruption of extinctive prescription (affirmative)

[1] Article 165 of the Civil Act provides that, once a final judgment becomes final and conclusive, there is no possibility that evidence for repayment will become unclear, so it is unnecessary to take short-term extinctive prescription, and even in this case, there is no need to take several procedures for interruption. Thus, legislative resolution is required. Thus, concerns such as uncertainty of evidence for repayment of a surety obligation by a final and conclusive judgment on the principal obligation are lost and strong evidence power is given to the obligor. In particular, once a final and conclusive judgment is rendered on commercial claims, the purpose of the commercial prescription system, such as prompt resolution of commercial transactions, does not need to be maintained. The guaranteed obligation is a system with the purpose of guaranteeing the performance of the principal obligation. Article 440 of the Civil Act provides that the guaranteed obligation should not be extinguished before the extinctive prescription expires, and thus, it is reasonable to interpret that the surety’s surety’s surety’s guarantee obligation is also identical to the principal obligor’s intent to maintain the extinctive prescription period after the interruption of prescription period has been interrupted. In light of the purport of Article 40 of the Civil Act, the same type of extinctive prescription.

[2] Even if an application for provisional attachment against a deceased person is illegal and the provisional attachment decision was made in accordance with such application, the decision shall be deemed null and void, and its validity shall not be deemed to be effective to his heir. However, in light of the fact that our Civil Code stipulates provisional attachment as one of the grounds for the interruption of extinctive prescription as one of the grounds for the interruption of extinctive prescription, not the effect of the provisional attachment prohibition, but the creditor's intent to realize the right as an application for provisional attachment, it means that the provisional attachment order against a deceased person has no effect of prohibition of disposal, which is the original effect of provisional attachment, and the effect of the decision of provisional attachment is not denied as a ground for interruption of extinctive prescription, since the application for provisional attachment and its decision did not have itself, even if it is null and void, if the creditor's intent to realize the right is deemed to be objective, the effect of the

[1] Articles 165 and 440 of the Civil Act, Article 64 of the Commercial Act / [2] Article 168 of the Civil Act

[1] Supreme Court Decision 86Meu1569 delivered on November 25, 1986 (Gong1987, 101) / [2] Supreme Court Decision 82Meu884 delivered on October 26, 1982 (Gong1983, 64) Supreme Court Decision 89Da9 delivered on March 29, 191 (Gong1991, 1283), Supreme Court Decision 2000Da30578 delivered on April 26, 2002 (Gong2002, 1239)

Plaintiff (Counter-Defendant) 1 and 3 others (Law Firm Gyeong & Yang, Attorneys Kim Jin-jin, Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Han-chul, Counsel for defendant-appellant)

Seoul District Court Decision 2002Gahap31839, 45210 delivered on July 25, 2003

April 8, 2004

1. The part concerning a counterclaim among the judgment of the court of first instance shall be modified as follows:

A. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 82,703,746 won each of them and 23,303,427 won per annum from April 21, 2002 to May 31, 2003, and 20% per annum from June 1, 2003 to the date of full payment.

B. The defendant-Counterclaim plaintiff's remaining counterclaims are dismissed.

2. The plaintiff (Counterclaim defendant)'s appeal against the principal lawsuit is dismissed.

3. The costs of lawsuit shall be ten minutes through the first, second, second, principal, and counterclaim, and the nine minutes shall be borne by the plaintiff (the counterclaim defendant) and the remainder shall be borne by the defendant (the counterclaim plaintiff).

4.1. A. The provisional execution may be effected.

1. Purport of claim

In this lawsuit: (1) It is confirmed that there is no inheritance obligation between the deceased non-party 1 and the defendant (hereinafter "the plaintiff") on June 13, 1991 and October 4, 1991 between the plaintiff (the counter-party; hereinafter "the plaintiff") based on each joint and several guarantee contract, and (2) the defendant pays to the plaintiffs, each of the 63,041,982 won, and its 18,880 won from November 12, 1992 to the delivery date of a copy of each complaint of this case from January 14, 1993 to the delivery date of a copy of each complaint of this case, and the amount calculated at 25% per annum from the next day to the day of full payment.

Counterclaim: The plaintiffs shall pay to the defendant 413,518,730 won and 116,517,139 won among them, 19% per annum from April 21, 2002 to the service date of a duplicate of the counterclaim of this case, and 25% per annum from the following day to the day of full payment.

2. Purport of appeal

Plaintiffs: (a) Revoking the first instance judgment; (b) dismiss the Defendant’s counterclaim; and (c) dismiss the same judgment as the purport of the claim in the first lawsuit.

Pursuant to the judgment of the court of first instance, the part against the defendant among the judgment of the court of first instance shall be revoked, and the judgment as per Disposition 1-A

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the respective descriptions of Gap evidence 1 through 4, Gap evidence 5-1, 2, Gap evidence 6, 7, Gap evidence 16, 21, Eul evidence 12-1 and 5, and the whole purport of arguments:

A. On June 13, 1991, the Defendant concluded a guarantee insurance contract for payment guarantee (hereinafter referred to as the "guarantee insurance contract") with the Korea Technology Finance Corporation, the insurance amount of the insurance amount of the Korea Technology Finance Corporation, 430,800,000 won between the Defendant and the Korea Technology Finance Corporation (hereinafter referred to as the "MMI"), and concluded a guarantee insurance contract for payment guarantee (hereinafter referred to as the "YI insurance contract") with each of the insured on October 4, 1991 by setting the amount of the insurance amount as KRW 5,060,000 and KRW 4,400,000 each, respectively.

B. On June 13, 191, Nonparty 2 and Nonparty 1, the father of Nonparty 2, who is the representative director of sewage water delivery, jointly and severally guaranteed the obligation of indemnity for sewage production under the first guarantee insurance contract (hereinafter referred to as the "first guarantee contract") against the Defendant on June 13, 191, and Nonparty 1, as the secured claim between the Defendant and the Defendant on the same day, concluded a mortgage contract on the amount of indemnity for sewage delivery (hereinafter referred to as the "mortgage contract of this case") with a claim for indemnity between 149.9m2 in Seongdong-gu Seoul Metropolitan Government ( Address 1 omitted), and completed the registration of establishment of a mortgage in the name of the Defendant under the name of the Seoul District Court as of June 13, 191.

C. On October 4, 1991, Nonparty 3, the husband of Nonparty 2 living with Nonparty 1, who was the non-party 1, jointly and severally guaranteed the indemnity liability for sewage delivery under the second guaranty insurance contract on behalf of the defendant 1 (hereinafter referred to as the "second guaranty insurance contract").

D. The Defendant paid a total of KRW 431,821,449 on November 14, 1991 to the insured in accordance with each of the above guarantee insurance contracts. On December 16, 191, the Defendant applied for a voluntary auction on the real estate stated in the above paragraph (b) and received dividends from the auction court for the amount of KRW 315,209,910 on December 315, 1992, and KRW 94,400 on January 14, 1993, total of KRW 315,304,310 on November 14, 1993.

E. The non-party 1 died on September 13, 1993. The inheritor has five persons including the plaintiffs and the above non-party 2. Among inherited property, active property among inherited property has 1/3 shares in 115 square meters prior to Gangnam-gu Seoul Metropolitan Government ( Address 2 omitted) and 8331 square meters of forests and fields ( Address 3 omitted) (hereinafter referred to as "affirmative property of non-party 1").

2. Summary of the parties' arguments

The plaintiffs claim that the first joint and several guarantee contract is null and void because the second joint and several guarantee contract was concluded by Nonparty 3 under the name of Nonparty 1 without obtaining the right of representation from Nonparty 1, and thus, it is null and void. Thus, there is no obligation of indemnity by Nonparty 1 under each joint and several guarantee contract of this case, and even if there is a liability for indemnity, even if there is a liability for indemnity by the plaintiffs, the obligation for indemnity inherited by the plaintiffs was extinguished by the completion of prescription, and that there is only a liability within the scope of inherited property by the qualified acceptance of inherited property of the plaintiffs, and that there is no obligation of indemnity by the plaintiffs under each joint and several guarantee contract of this case, and ② the mortgage contract of this case is concluded under the name of Nonparty 1 without obtaining the right of representation from Nonparty 1 without obtaining the right of representation from Nonparty 1, and thus, it is null and void.

As to this, the defendant, ① each of the instant joint and several liability agreements and mortgage agreement was concluded by the free decision-making of the deceased non-party 1, and the second joint and several liability agreement was duly concluded by the non-party 3, who is the representative of the non-party 1. Accordingly, each of them was effective, and the plaintiffs succeeded to the non-party 1's claim for indemnity. ② The defendant's claim for indemnity prohibition against non-party 1's claim against the non-party 1 on June 25, 1996 and the provisional attachment order against non-party 1's active property on July 200. ③ The plaintiffs cannot be deemed to fall under the inheritor who is protected by the transitional measure under paragraph 3 of the Addenda to the amended Civil Act, and thus, the plaintiffs' claim for reimbursement against the plaintiffs that the defendant could not receive reimbursement through the above voluntary auction.

Therefore, the issues of this case are as follows: ① the validity of each joint and several guarantee contract of this case and mortgage contract of this case; ② the expiration of the extinctive prescription of the claim for reimbursement of this case; ③ the validity of qualified acceptance; ② the examination of the first, and ② the second, the second, the second, the second, and the second, the second, the second, and the second, the second

3. Whether each contract of joint and several sureties and mortgage contract of this case were effective

A. As to the first joint and several guarantee contract

The plaintiffs asserts that the first joint and several guarantee agreement that Nonparty 1 entered into in the dementia state is null and void as an act by a person without mental capacity.

In light of the above facts, it is difficult to believe that Gap evidence No. 18 was written on October 22, 1991. ① The evidence No. 12, No. 13-1, and No. 19 are written on the date 10 or more years have elapsed since the date of signing the first joint guarantee contract, and "the non-party No. 1 showed abnormal behavior due to dementia around 1991." The evidence No. 14 and No. 15 are written on the basis that the non-party No. 1 was dependent on a vague observation and memory as a non-professional. ② The non-party No. 14 and No. 15 were suffering from brain 12, No. 133, and there is no sufficient evidence to acknowledge that the non-party No. 1 was in the status of his capacity at the time of signing the first joint guarantee contract, and there is no way to acknowledge that the non-party No. 1 was in the status of his capacity at the time of Non-party No. 14 and No. 15, the evidence No. 914.

B. Regarding the mortgage contract of this case and the registration of establishment of mortgage

The plaintiffs asserted that the establishment registration of mortgage contract of this case and the establishment of mortgage of this case are null and void, since they concluded the mortgage contract of this case at will without the power of attorney from Nonparty 1 in the status of Nonparty 1's office ability.

On the other hand, there is no evidence to prove that Nonparty 1 was in the state of business ability at the time of entering into the mortgage contract of this case. As seen earlier, it is difficult to believe that Nonparty 3 was in accordance with the plaintiffs' assertion that Nonparty 1 had entered into the mortgage contract of this case on behalf of Nonparty 1 on behalf of Nonparty 1, and there is no other evidence to acknowledge it. Rather, in full view of the entries and the whole purport of the arguments in subparagraphs 1 and 3-1 and 3-3, it is reasonable to deem that Nonparty 1 directly entered into the mortgage contract of this case and the written consent to the security, and as long as the establishment registration of the mortgage of this case has been completed, the registration of this case is presumed to have been duly concluded. Accordingly, the plaintiffs' above assertion is not reasonable.

C. As to the second joint guarantee contract

(1) Determination as to the assertion of unauthorized Representation

The plaintiffs asserted that the second joint and several guarantee agreement that Nonparty 3 voluntarily concluded without obtaining the power of representation for the conclusion of the contract from Nonparty 1 is null and void as an act of unauthorized representation.

Therefore, after examining whether Nonparty 1 granted the right of representation for the conclusion of the second joint guarantee contract to Nonparty 3, the fact that Nonparty 3 had a seal imprint certificate and a certificate of seal impression at the time of concluding the second joint guarantee contract is without dispute between the parties concerned. In full view of the purport of the arguments as to the above evidence Nos. 1, 2, 4, 15-1, 2, and 16, Nonparty 1 had already concluded the first joint guarantee contract of this case at the time of signing the second joint guarantee contract, which covers the obligation of indemnity for sewage delivery. The amount of the second joint guarantee contract of this case (the insurance amount of KRW 5,060, 400, 400,000) is not higher than the amount, the representative director of Nonparty 1 was Nonparty 2, and Nonparty 3 was Nonparty 1, and Nonparty 2, at the time of signing the second joint guarantee contract of this case, Nonparty 2 and Nonparty 3 can not be acknowledged as being legally supported by the plaintiffs' joint and several guarantee contract of this case.

(2) The meaning of signing and sealing in the insurance subscription form

The plaintiffs stated "I fully understand and sign and seal all the provisions of this Agreement relating to the contents of guarantee insurance contract based on the guarantee insurance contract for installment sale in front," in the evidence No. 1 and No. 2 (each subscription form for insurance). Thus, in order to establish the joint and several several liability insurance contract effectively, Non-Party 1, the guarantor, should have signed and sealed it directly, but the joint and several liability insurance contract of this case was invalid because Non-Party 3, the guarantor, signed and sealed it. However, even in the case of the joint and several liability insurance contract to be concluded by the agent, if the signing of the contract is required to be done by the agent, it would result in denying the conclusion of the guarantee contract by proxy. Thus, the above provision is merely a provision that the parties who enter into the contract ( regardless of the principal, agent, etc.) should fully understand and conclude the contents of the contract. Therefore, it cannot be deemed that the principal's own signature is a valid

D. Sub-committee

Therefore, the plaintiffs' assertion that each joint and several guarantee contract of this case, mortgage contract, and establishment registration of a mortgage is null and void is without merit.

4. Whether the period of prescription for liability for indemnity expires;

A. Facts of recognition

The following facts may be acknowledged in full view of the purport of the entire pleadings in each of the statements in Gap 7, 11, 4, and 13-2, although there is no dispute between the parties, or in full view of the purport of the whole pleadings.

(1) On June 25, 1996, the defendant filed a lawsuit with the Seoul District Court Decision 96Da136682, which sought payment of the remainder of the claim for indemnity which was not repaid through the above voluntary auction (hereinafter referred to as "the claim for indemnity in this case") and received a judgment in favor of all of the court on October 16 of the same year, and the above judgment became final and conclusive on November 14 of the same year.

(2) After that, around July 200, the defendant filed an application for provisional seizure of Nonparty 1's active property with the Seoul District Court Decision 2000Kadan73868 as the claim for indemnity against Nonparty 1 as the claim for reimbursement against Nonparty 1. On July 18, 200, the provisional seizure decision was issued on July 18, 200, and completed the provisional seizure registration on the 21st of the same month.

(3) Meanwhile, around June 29, 2001, Nonparty 5, a successor of Nonparty 1, filed a death report with Nonparty 1.

(b) Markets:

(1) The defendant's claim for indemnity against the non-party 1 was due on November 14, 1991 when the defendant paid the insurance money to the insured, and the above claim for indemnity amount is five years of extinctive prescription. The defendant's counterclaim in this case is obvious in the record that the defendant's claim for indemnity amount was filed on July 16, 202, which was five years after the lapse of such period. Thus, barring any special circumstance, it shall be deemed that the defendant's claim for indemnity amount against the non-party 1 extinguished by extinctive prescription, barring any special circumstance.

(2) Interruption of prescription due to the "litigation for indemnity of this case"

On June 25, 1996, before five years have passed from the due date of the claim for reimbursement against the Defendant, the principal debtor of the claim for reimbursement, and the judgment was rendered in favor of the Defendant, and the judgment became final and conclusive, as seen earlier, the statute of limitations was interrupted. Since the interruption of the statute of limitations against the wastewater delivery, which is the principal debtor, also becomes effective against the non-party 1, who is the guarantor (Article 40 of the Civil Act, and the lawsuit for reimbursement of this case was filed against the non-party 1, who is the guarantor, and was also sentenced to the judgment. Since the non-party 1 had already died at the time of the lawsuit, the judgment against the Defendant's non-party 1 in the judgment on the claim for reimbursement of this case is null and void). Accordingly, the statute of limitations on the claim for reimbursement against the Plaintiffs who inherited the guaranteed obligation due to the death of non-party 1, also was interrupted on June 25, 1996.

However, in cases where a claim becomes final and conclusive by a judgment, etc. between a creditor and a principal debtor and the joint and several sureties, it is problematic whether the period of extinctive prescription of a joint and several sureties's joint and several sureties still follows the previous period of prescription. Accordingly, Supreme Court Decision 86Meu1569 Decided November 25, 1986 held that even if a guaranteed obligation is subordinate to the principal obligation, the guaranteed obligation has the nature of independent obligation separate from the principal obligation and the interruption of prescription of a principal obligor under Article 440 of the Civil Act is effective against the guarantor, but this provision is a special provision for protecting creditors or securing claims, rather than based on the nature of the guaranteed obligation, and this provision is a special provision for protecting creditors or securing claims, if a cause of extinctive prescription has occurred against the principal obligor, and at the same time, it does not affect the guarantor at the same time, and even if the prescription period has been interrupted by the judgment, etc. between the creditor and the principal obligor, the extinctive prescription period under the previous period of joint and several sureties.

① However, Article 165 of the Civil Act provides that, once a final judgment becomes final and conclusive, there is no possibility that evidence for repayment will become unclear, so it is unnecessary to take short-term extinctive prescription, and even in this case, there is no need to take a short-term extinctive prescription if it takes several procedures for interruption. Thus, legislative resolution is intended. As such, concerns such as uncertainty of evidence for repayment of a surety obligation by a final and conclusive judgment on the principal obligation are lost and strong evidentiary power is given to the obligor. In particular, once a final and conclusive judgment is rendered on commercial claims, it is unnecessary to maintain the purport of the extinctive prescription system, i.e., prompt resolution of commercial transactions if it is a final and conclusive judgment on commercial claims. (2) Article 440 of the Civil Act provides that a surety seeks to secure security of a claim by ensuring that a surety’s surety’s obligation does not extinguish before the extinctive prescription expires, and thus, it is reasonable to interpret that a surety’s surety’s surety’s obligation is in accord with the intent of the principal obligor or obligee’s obligation after the interruption of extinctive prescription.

Therefore, the extinctive prescription of the Defendant’s claim for indemnity against the Plaintiffs was interrupted as a lawsuit for indemnity of this case, and ten years have not passed since November 14, 1996, which was the date when the lawsuit for indemnity of this case became final and conclusive, it cannot be deemed that the claim for indemnity of this case expired due to the completion of prescription, and therefore, the Plaintiffs’ assertion is without merit.

As to this, the Plaintiffs asserted that, in the event of the death of the guarantor, inheritance of the guarantor is a guarantee obligation and does not inherit the status of the guarantor. Thus, even if an obligee files a lawsuit against the principal obligor after the death of the guarantor, there is no guarantor subject to the effect of interrupting prescription, and thus, there is no room for the interruption of prescription with the inheritor. However, in light of the purport of Article 440 of the Civil Act as seen earlier, the Plaintiffs’ assertion is without merit so long as the inheritor comprehensively succeeds to the rights and obligations of the inheritee.

(3) Interruption of prescription and violation of the good faith principle due to the "decision of provisional seizure of this case"

Even if the period of extinctive prescription of the above claim for indemnity after the interruption of prescription due to the confirmation of the lawsuit seeking reimbursement of this case is considered five years as the purport of the above Supreme Court Decision, the plaintiffs' assertion is without merit for the following reasons.

The judgment of the court below on July 14, 1996, before the expiration of five years from November 14, 1996, which was the date the extinctive prescription of the lawsuit of this case became final and conclusive, applied for provisional attachment against Nonparty 1’s active property and completed the registration upon receipt of the provisional attachment order. As seen above, the plaintiffs asserted that the provisional attachment order of this case against the deceased person at the time of the application has no effect of interrupting prescription since the provisional attachment order of this case is void as it is reasonable. The defendant asserted that the provisional attachment of this case has no effect of interrupting prescription, and although the defendant could not know the death of Nonparty 1 due to the plaintiffs’ failure to file a death report or inheritance registration, the provisional attachment order of this case against the deceased person and thus asserted that it is null and void is contrary to the good faith principle.

In light of the fact that the application for provisional seizure against a deceased person as the debtor is illegal and the decision of provisional seizure was made in accordance with the application, the decision shall be deemed null and void, and its effect shall not affect the inheritor (see Supreme Court Order 89Do9, Mar. 29, 1991). However, in light of the fact that the Korean Civil Act stipulates provisional seizure as one of the grounds for the interruption of the extinctive prescription as the provisional seizure, not for the prohibition of disposal, but for the application for provisional seizure, the creditor's intent to realize the right is objective, the provisional seizure is not for the reason for the interruption of the extinctive prescription, the effect of the decision of provisional seizure against the deceased person is merely that the prohibition of disposal, which is the original effect of provisional seizure, has no effect, and it is not for the reason for the interruption of the extinctive prescription. Therefore, even if the provisional seizure is null and void, if the creditor's intent to realize the right is objective, it shall be recognized as the grounds for the interruption of the extinctive prescription.

In this case, even though about seven years have passed since the date of death of Nonparty 1 until the provisional attachment decision of this case, the plaintiffs did not report the death of Nonparty 1 and did not complete the registration of ownership transfer for Nonparty 1's active property due to inheritance. The defendant believed that Nonparty 1 was alive and did not have any choice to file an application for provisional attachment to preserve the claim for indemnity of this case with the debtor. If the defendant knew the death of Nonparty 1 through a family registry copy or a certified copy of the family registry or a certified copy of the family registry, or files an objection against the decision of provisional attachment of this case against Nonparty 1, etc., it can be easily recognized in light of empirical rule that the defendant applied for provisional attachment of this case to the heir as the debtor, and therefore, it is reasonable to view that the defendant had expressed his intention to realize the right to claim for indemnity of this case by the application for provisional attachment of this case. Accordingly, the extinctive prescription of the claim for indemnity of this case was interrupted due to the provisional attachment decision of this case.

In addition, the plaintiffs made the appearance the same as that of Non-party 1's survival because they did not file a long-term death report and registration of inheritance, and they did not inform the defendant of the death or raise an objection for this reason even at the time of the decision of provisional seizure of this case filed by the defendant with trust in its appearance. In the lawsuit of this case brought nine years after the death date of Non-party 1, claiming that the provisional seizure of this case against the deceased person has no effect of interrupting prescription cannot be permitted against the good faith principle.

C. Sub-committee

Thus, the defendant's claim for indemnity against the plaintiffs was suspended due to the lawsuit of indemnity of this case and the decision of provisional seizure of this case (where the statute of limitations is deemed five years).

5. Determination on the main claim

Each joint and several guarantee contract of this case and mortgage contract of this case are valid, and since the prescription period of the non-party 1's indemnity obligation inherited by the plaintiffs continues to exist until the conclusion of the pleadings of this case, the claim for confirmation of existence of the plaintiffs' obligation and the claim for return of unjust enrichment premised on the invalidation of the contract and the registration of mortgage

6. Judgment on the counterclaim

(a) Existence of liability for indemnity;

After the Defendant paid the insurance proceeds to the insured amount of KRW 431,821,449, the fact that the Defendant received dividends of KRW 315,304,310 in the above voluntary auction procedure is as seen earlier. As such, the Plaintiffs who inherited Nonparty 1’s indemnity obligation are liable to pay the remainder of the indemnity amount and damages for delay that have not been paid to the Defendant according to their respective inheritance shares.

B. Determination on the plaintiffs' defenses of qualified acceptance

(1) The plaintiffs' assertion

On April 20, 2002, when eight years have passed since the death of Nonparty 1, the Plaintiffs came to know that the obligation of Nonparty 1’s joint and several liability remains after receiving a letter of demand for performance of obligation from the Defendant, and that the report was accepted with the Seoul Family Court by filing a report on the inheritance recognition with Nonparty 1, and thus, the Plaintiffs asserts that the above obligation of indemnity shall be borne only within the scope of inheritance from Nonparty 1.

(2) Determination:

(A) In full view of the overall purport of the pleadings as indicated in the evidence No. 26 (i.e., evidence No. 19-27), evidence No. 19-7, 16, 25, and 28, the plaintiffs filed a petition for adjudication on the waiver of inheritance with Seoul Family Court 2001-Ma4093 on July 4, 2001, and on April 11, 2002, the plaintiffs obtained a judgment to accept a report on the qualified acceptance of the qualified acceptance on Nov. 12, 2002 by changing the purport and reason of Nonparty 1’s active property to the list of property, along with the report on the qualified acceptance of the qualified acceptance on Nov. 12, 2002. Although the defendant filed a special complaint with the Supreme Court on the above judgment, the appeal was dismissed on June 4, 2003 (2031) and the above judgment became final and conclusive.

(B) Effect of accepting acceptance of qualified acceptance

A judgment on acceptance of a qualified acceptance by the family court is recognized as satisfying the requirements for the qualified acceptance, and it does not confirm its effect, but the final judgment on whether a qualified acceptance has the effect of inheritance is decided in civil procedure pursuant to the substantive law (Supreme Court Decision 2002Da21882 Decided November 8, 2002). Therefore, it cannot be readily concluded that the effect of a qualified acceptance has occurred solely on the fact that the Plaintiffs’ report on a qualified acceptance was accepted as above.

(C) Validity of the report on qualified acceptance of this case

Therefore, the Constitutional Court rendered a ruling of inconsistency with the Constitution of the Republic of Korea as to Article 1026 subparagraph 2 of the Civil Code before the amendment, which provides that the inheritance shall be deemed to have been granted upon the lapse of three months after the commencement of the inheritance on August 27, 1998. Accordingly, the Constitutional Court decided that the Civil Code was amended by Act No. 6591 on January 14, 2002, and that the heir was not aware of the excess of the inheritance obligation within three months after the commencement of the inheritance without gross negligence, and that the heir was not aware of the excess of the inheritance obligation within 3 months after the commencement of the inheritance, Article 1019 (3) of the Civil Code which provides that the heir shall file a declaration of qualified acceptance within 9 months after the commencement of the inheritance.

As seen earlier, the facts that Non-Party 1 died on September 13, 1993. In full view of the statements and the overall purport of evidence Nos. 120 and No. 11 of evidence Nos. 199, 11 as to this case, 1. 3. 1. 1. 2. 9, 993, 1. 3. 1. 9, 993, 1. 1. 9, 1. 3. 9, 96, 96, 1. 96, 99, 1. 2. 9, the deceased Non-Party 3, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 1, and the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 1, the deceased Non-Party 2, and the plaintiffs 25000 million won.

C. The scope of the plaintiffs' liability

The principal of the remainder of the indemnity liability of this case is KRW 116,517,139 ( KRW 431,821,449 - KRW 315,304,310). The agreed delay damages until April 20, 202 are KRW 297,001,591 (A3). As such, the surviving indemnity liability is KRW 413,518,730 ( KRW 116,517,139 + KRW 297,01,591) and its principal amount is 116,517,139, and 116,517,139; the deceased Nonparty 1’s heir’s share in inheritance is 1/5; the Plaintiffs’ share in inheritance is 81,000,001,000 won x 2136,374,137,1375,137,1375,275, etc. x.136, x.137.

7. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the defendant's counterclaim is justified within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Among the judgment of the court of first instance, the part concerning the plaintiffs' counterclaim is just, and the plaintiffs' appeal is dismissed, and the part concerning the defendant's counterclaim is unfair with some different conclusions, so the defendant's appeal is accepted and the judgment of first instance is modified as above. It is so decided as per Disposition.

Judges Gu-Appellee (Presiding Judge)