[1] Whether a will not be a will is a confession under the Civil Procedure Act (negative)

[2] Whether Article 1065 or 1072 of the Civil Act regarding the method of testamentary gift applies mutatis mutandis to a private donation (negative)

[3] The meaning of the starting point of the extinctive prescription period for the right to claim the return of legal reserve of inheritance and the meaning of "the donation or testamentary gift was known" under Article 1117 of the Civil Code

[4] The method of exercising the right to claim the return of legal reserve of inheritance and the interruption of extinctive prescription

[5] The case holding that even if the person having the right to legal reserve of inheritance claimed the return of the money consumed by the donee by claiming that the donation is null and void, it is difficult to view that the claim for return of legal reserve of inheritance under the premise that the private donation is valid

[1] The court below's ruling that a person who is not a legal will is not a will can not immediately become a will, and such a statement cannot be a confession under the Civil Procedure Act.

[2] Article 562 of the Civil Code provides that the provisions on testamentary gift shall apply mutatis mutandis to a testamentary gift. However, Articles 1065 through 1072 of the Civil Code regarding the method of testamentary gift are premised on the fact that it is a sole act, and thus, it does not apply to a private donation which

[3] Article 1117 of the Civil Code provides that the right to claim the recovery of the legal reserve of inheritance expires unless the person having the right to the legal reserve of inheritance becomes aware of the fact that the gift was made to be returned or that the gift was made to be returned within one year from the time when the person having the right to the legal reserve of inheritance became aware of the fact that the gift was made to be returned and that it was to be returned. Thus, in a case where the person having the right to the legal reserve of inheritance knows that the donation was null and void and there is a dispute over the lawsuit, it cannot be concluded that the person having the right to the legal reserve of inheritance of knowing that there was a gift to be immediately returned with the knowledge of the fact that the donation was made. However, in light of the purport of the Civil Code with regard to the right to claim the recovery of the legal reserve of inheritance of inheritance of a person having the right to the legal reserve of inheritance of a case where the person having the right to the legal reserve of inheritance of a person having the legal reserve of inheritance of a case did not proceed. Thus, if there are grounds for the claim for invalidation and there are no special circumstances acceptable.

[4] The expression of intent to claim the return of legal reserve of inheritance does not need to specify the subject matter in detail, unlike the exercise of the right to claim the transfer of the subject matter or the right to claim the transfer of the subject matter arising from the designation of the testamentary gift or the act of donation, and the extinctive prescription under Article 1117 of the Civil Code shall also be interrupted by the above declaration of intention.

[5] The case holding that even if the person having the right to legal reserve of inheritance asserts that a private donation is null and void before the expiration of the extinctive prescription period, and the donee requested the donee to deliver the deposit passbook and seal in the name of the deceased and to return the amount consumed at will among the money owned by the deceased, it is difficult to view that the claim for return of legal reserve of inheritance was included in the claim on the ground that the above private donation was in violation of the legal reserve of inheritance on the contrary to such assertion

[1] Article 1060 of the Civil Act, Article 261 of the Civil Procedure Act / [2] Articles 562 and 1065 of the Civil Act / [3] Article 1117 of the Civil Act / [4] Articles 1115 and 1117 of the Civil Act / [5] Articles 115 and 1117 of the Civil Act

[1] Supreme Court Decision 70Da2662 decided Jan. 26, 1971 (Unpublished in Official Gazette) / [2] Supreme Court Decision 94Da37714, 37721 decided Apr. 12, 1996 (Gong1996Sang, 1491) / [3] Supreme Court Decision 97Da38510 decided Jun. 12, 1998 (Gong198Ha, 1866), Supreme Court Decision 99Da2394 decided Apr. 11, 200 (Unpublished in Official Gazette) / [4] Supreme Court Decision 93Da11715 decided Jun. 30, 1995 (Gong195Ha, 2533)

Plaintiff (Counterclaim Defendant)

Defendant Counterclaim Plaintiff and one other (Attorney Park Jong-won, Counsel for the plaintiff-appellant)

Gwangju High Court Decision 99Na5834, 5841 delivered on November 2, 2000

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

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

1. On the first ground for appeal

Examining the relevant evidence compared with the record, the court below’s decision that recognized the fact that the non-party declared his/her intention as to the pro rata property portion after his/her death is just, and did not err by misapprehending the facts against the rules of evidence. The allegation in the grounds of appeal on this part is without merit.

2. On the second ground for appeal

A. The mere fact that a will is not a legal will cannot be a will, and such a statement cannot be a confession under the Civil Procedure Act (see Supreme Court Decision 70Da2662, Jan. 26, 1971).

According to the reasoning of the judgment below, the court below asserted that the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") filed a claim against the defendants on the ground that the plaintiff (the counter defendant; hereinafter referred to as "the plaintiff") made a will of the contents as stated in the above list as the cause of the claim in this case, and that the contract of private donation was concluded between the deceased and the plaintiff on July 15, 1998, but the contract of private donation was concluded between the plaintiff and the plaintiff on the ground that the plaintiff was merely a statement about the legal nature of the expression of intent as stated in the above list, but the plaintiff's above assertion cannot be deemed to have been a statement about facts, so it can be freely withdrawn, and the court shall not be bound. In light of the above legal principles, it is just

B. A private donation is distinguishable from a testamentary gift, which is a sole act, in that the donor promises to grant an asset free of charge before the death of the donor and that the promise takes effect upon the death of the donor requires an agreement with the donee as a kind of gift contract becoming effective.

According to the facts established by the court below, on April 1, 1998, the deceased expressed his intention to make a donation of KRW 30 million to the defendant (Counterclaim plaintiff, hereinafter "the defendant"), among the money that he had collected from the plaintiff and the defendant 2, and the remaining money and the apartment of this case were expressed to the plaintiff, and there was a dispute over the plaintiff's pro rata property portion between the plaintiff and the defendants since that time. On April 14, 1997, it is reasonable to view that the deceased's act of making a donation of KRW 10 million as well as KRW 30 million to the defendant 1 and KRW 30 million to the defendant 2,00,000, and then to distribute the remaining money and apartment after his own decision, and it is reasonable to view that the act of the defendant 2 received a donation of KRW 9,000,000 from the plaintiff and the defendant 4,000,0000,000,000,000 won, and the remaining money and apartment money were distributed.

Meanwhile, Article 562 of the Civil Act provides that the provision on testamentary gift shall apply mutatis mutandis to a testamentary gift. However, Articles 1065 through 1072 of the Civil Act regarding the method of testamentary gift is premised on that it is a sole act, and thus, it shall not apply to a private donation which is a contract (see Supreme Court Decision 94Da37714, 3721, Apr. 12, 1996). Thus, the judgment of the court below which held that a private donation which is not based on the method of testamentary gift is valid cannot be deemed unlawful. The allegation in the grounds of appeal on this part is without merit.

3. On the third ground for appeal

Article 1117 of the Civil Act provides that the statutory reserve of inheritance shall expire unless the person having the right to the statutory reserve of inheritance becomes aware of the fact that the gift or testamentary gift that should be returned was made within one year from the time when the person having the right to the statutory reserve of inheritance becomes aware of the commencement of inheritance or that the gift should be returned. Thus, if the person having the right to the statutory reserve of inheritance becomes aware of the fact that the gift or any other gift should be returned, it cannot be readily determined that the person having the right to the statutory reserve of inheritance knows that the gift was null and void and that there was a gift that should be immediately returned if the person having the right to the statutory reserve of inheritance becomes aware of the fact that the gift or any other gift was being returned. However, in light of the purport of special short-term extinctive prescription of the Civil Act regarding the right to the statutory reserve of inheritance, even if the person having the right to the statutory reserve of inheritance of the deceased, it is unfair that the statute of limitations does not run even if the person having the right to the statutory reserve of inheritance of inheritance of the deceased of the deceased of the deceased of the Republic of Korea.

According to the records, the defendants knew of the contents of the donation of this case at the time of April 14, 1998, and it is obvious that the deceased died on April 22, 1998. The defendants asserted that the declaration of intent was null and void on April 14, 1998 of the deceased on several grounds in the lawsuit of this case, but at least the plaintiff asserted that the contract was concluded between the deceased and the plaintiff on July 15, 1998, the plaintiff's assertion was not deemed to be to deny the private donation of this case without any factual or legal basis. On the other hand, there is no special circumstance to prove that the defendants were aware that the plaintiff was aware of the invalidity of the private donation of this case. Thus, the defendants' claim for the return of the right to forced inheritance against the plaintiff of this case from July 18, 1998, which was served on the day following the day on which the plaintiff's claim for the return of forced inheritance had already been made by the plaintiff on January 18, 1999.

In addition, the expression of intent to claim the return of legal reserve of inheritance does not mean that the subject matter should be specified if it is sufficient to designate the testamentary gift or gift which was infringed and if it expresses its intention to claim the return thereof, and the subject matter should not be specified differently from exercising the right to claim the registration of transfer or the right to claim the delivery of the subject matter arising therefrom. While extinctive prescription under Article 1117 of the Civil Act may be interrupted by the above expression of intent, the Defendants asserted that the donation of this case was null and void before the expiration of the extinctive prescription period and sought the return of the subject matter voluntarily consumed by the Plaintiff as a counterclaim, even if the Defendants asserted that the donation of this case was made by the Plaintiff prior to the expiration of the extinctive prescription period, it is difficult to view that the claim for return of legal reserve of inheritance was included in the counterclaim itself on the premise that the above private donation was valid.

Therefore, the lower court’s conclusion that the Defendants’ right to claim the return of legal reserve expired due to the statute of limitations is justifiable, and the lower court did not err by misapprehending the legal principles on the starting point of the statute of limitations for the right to claim the return of legal reserve, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

4. Therefore, all appeals are 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 Lee Han-gu (Presiding Justice)