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(영문) 대법원 2012. 3. 15. 선고 2010다53952 판결
[소유권보존등기말소등][공2012상,567]
Main Issues

[1] In the case where a married male who is a married family under the former custom died of the family without being selected by the married male who is to succeed to the family, and whether a female family who was to succeed to the family has died or went out of the family and became no person to succeed to the family as a result of the death of the married family without being selected by the adopted family (negative)

[2] In the case where a female head of a family dies or leaves the house and becomes extinct without family heir, the relationship of attribution of a miscarriage

[3] In a case where Gap, at the time of Gap's death, died of the head of the family, the head of the male and the head of the family who were to inherit Eul, and Eul re-born thereafter, the case holding that the judgment below erred by misapprehending the legal principles, although Eul's miscarriage of Gap, who was the male and female head of the family, was presumed to have been reverted to Byung and Byung, who was the male and female head of the family, and the grandchildren of Eul, were not selected by the ex post facto mother within a considerable period of time after Eul re-born, the case holding that the judgment below erred by misapprehending the legal principles

Summary of Judgment

[1] In the case where a male of the married family who is the head of the family died without a male to inherit the head of the family, the deceased's mother, mother, wife, and married couple shall be the mother's head of the family in the order of the maintenance expenses until the adopted children are selected, and the right and property of the head of the family who was succeeded to the mother's head of the family shall be succeeded to the ex post facto adopted children. If the adopted children are selected, the right and property of the head of the family who was succeeded to the family shall not be immediately interrupted even if the female head of the family who died or went out of the family and no person to inherit the head of the family is appointed without the selection of the adopted children, and if the adopted children are not selected within a reasonable period of time from the time when the female head of the family died or went out, then

[2] According to the former custom, where a female head of a family dies or leaves a house and is cut off without the family head of a family, the miscarriage shall be succeeded to by the family member of the married family without the family head of the family. If a female head of the married family does not exist, the miscarriage shall belong to the married family member who is the relative of the family head of the married family, that is, to the married family member of the deceased family head of the married family head of the married family, and if no such person exists, the miscarriage shall belong to the Ri/Dong in which a female head of the married family resides. However, if the miscarriage of the married family head of the married family belongs to the family head of the married family, the inheritance of the married family member of the married family head of the married family under the premise of the succession of the family head of the married family, not to have the character of inheritance under the premise of the extinguishment of the family head of the married family head of the married family, and if the family head of the married family head of the married family belongs to the same family head of the married family head of the family after the birth.

[3] The case holding that the judgment below erred in the misapprehension of legal principles on the ground that, in case where Party A’s miscarriage, who was the wife of the deceased head of the family at the time of Party A’s death, Party A’s wife of the deceased head of the family, and Party A’s wife of the deceased head of the deceased head of the family, had already been deceased, and Party B resumed thereafter, Party A’s wife of the deceased head of the deceased head of the household at the time of Party A’s death, and Party A’s wife of Party A did not have been appointed as a ex post facto mother within a considerable period after Party A’s re-born, and Party A’s miscarriage of Party A’s head of the deceased head of the male head of Party A was attributed to Party A’s family, and Party A’s head of Party A’s head of the male head of Party A

[Reference Provisions]

[1] Article 100 of the Civil Code / [2] Article 1000 of the Civil Code / [3] Article 100 of the Civil Code

Reference Cases

[1] Supreme Court Decision 94Da46411 delivered on April 11, 1995 (Gong1995Sang, 1837), Supreme Court Decision 2004Da10206 delivered on June 11, 2004 (Gong2004Ha, 1161) / [2] Supreme Court Decision 78Da1979, 1980 delivered on February 27, 1979 (Gong1979, 11852)

Plaintiff-Appellant

Plaintiff (Law Firm Sejong, Attorneys Han Man-man et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

Defendant 1 and one other (LLC, Kim & Lee LLC, Attorneys Ois-gyon et al., Counsel for the defendant-appellant)

Judgment of the lower court

Seoul Central District Court Decision 2009Na5680 Decided June 18, 2010

Text

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

Reasons

The grounds of appeal are examined.

According to the old custom, where a male who is the head of family dies without the inheritance of the head of family, the deceased's father, her mother, her wife, and her father became the deceased's head of family in the order of maintenance expenses, and if the mother is selected after the death of her mother, the rights and property inherited to her head of family shall be succeeded to the post-management of her mother. If her mother died without the post-management of her mother, her head of family shall not immediately be her head of family (see Supreme Court Decisions 94Da4611, Apr. 11, 1995; 204Da10206, Jun. 11, 2004).

The court below, based on the adopted evidence, found the following facts as stated in its reasoning: (a) Nonparty 1 and Nonparty 2 were under the supervision of the Republic of Korea and Nonparty 3; (b) Nonparty 2 and Nonparty 5 and 6, who were son and son; (c) Nonparty 3, who was son and son, was under the supervision of the Republic of Korea; (d) Nonparty 7, who was son and son; (e) before Nonparty 1 died on September 5, 1927, both Nonparty 2 and son 4 had died; and (e) Nonparty 1, who was the wife of Nonparty 1 and Nonparty 2, the wife of Nonparty 8 and Nonparty 2, who was the wife of Nonparty 4, died on November 25, 1927; and (e) determined that Nonparty 10, who was the wife of Nonparty 1, the wife’s wife’s wife’s family register, and (e) Nonparty 1 and Nonparty 6, the deceased’s family register’s family register’s deceased on May 11, 7, 197.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles and the following circumstances.

First, according to the reasoning of the judgment below, the court below and the evidence duly admitted by the court of first instance, the non-party 10 was removed from the family registry in which he was born on May 31, 1928, and was removed from the family registry in which he was born. At the time the non-party 10 was removed from the family registry, the non-party 6 and the non-party 7, who was the non-party 1's family, were still their family members, and the non-party 10 was not selected after the expiration of a considerable period of time from the time the non-party 10 remarried. Thus, the non-party 7 reported the family registry on December 1, 1930 and became the family head, and the non-party 6, whose family name was entered in the non-party 7's family registry, was withdrawn on January 30, 193.

Examining these facts in light of the legal principles as seen earlier, Nonparty 1’s (A) was cut off due to Nonparty 1’s non-party 1’s failure to be selected within a considerable period of time after the marriage of the female head of the family, and Nonparty 1’s (A)’s legacy should belong to his family. The family member was Nonparty 6, and all of them were the grandchildren or grandchildren of Nonparty 1, who were the former male head of the family, and therefore, Nonparty 1(A)’s legacy should be deemed to have belonged to the equal ratio to Nonparty 6 and Nonparty 7, who are the family member.

Nevertheless, the lower court, based on its reasoning, determined that Nonparty 1(A)’s miscarriage was solely reverted to Nonparty 6. In so doing, the lower court erred by misapprehending the legal doctrine on the reversion of the miscarriage in a case where a female head of a family re-satisfy and was cut back, thereby adversely affecting the conclusion of the judgment.

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 on the bench.

Justices Park Poe-dae (Presiding Justice)

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