Plaintiff (Appointed Party)

Defendant 1 and one other

August 31, 2017

Changwon District Court Decision 2016Kadan10561 Decided April 21, 2017

1. Of the judgment of the court of first instance, the part against the Defendants regarding the real estate stated in the separate sheet No. 1 shall be revoked, and all the claims against the Defendants by the Plaintiff (Appointed Party) falling under the revoked part

2. The remaining appeals by Defendant 1 are dismissed.

3. Of the total litigation cost between the Plaintiff (Appointed Party) and Defendant 1, 60% of the total litigation cost is borne by the Plaintiff (Appointed Party) and the remainder by Defendant 1, and the total litigation cost between the Plaintiff (Appointed Party) and Defendant 2 is borne by the Plaintiff (Appointed Party).

1. Purport of claim

The primary purport of claim: The plaintiff (Appointed Party; hereinafter referred to as the "Plaintiff") and the selector; Defendant 1 shall perform the procedure for registration of cancellation of ownership transfer completed as of July 2, 2015 with respect to the share of 4/5 of the real estate listed in the separate sheet No. 1; Defendant 2 shall perform the procedure for registration of cancellation of ownership transfer completed as of June 8, 2015 with respect to the share of 8/85 of the real estate listed in the separate sheet No. 15319, which was completed as of June 8, 2015; and the share of 8/85 of the real estate listed in the separate sheet No. 3993, Jun. 9, 2015; Defendant 2 shall perform the procedure for registration of cancellation of ownership transfer completed as of July 2, 2015 as of the share of 4/5 of the real estate listed in the separate sheet No. 1 attached hereto.

Preliminary claim: The sales contract concluded on June 25, 2015 with respect to the real estate stated in the separate sheet No. 1 by the Defendants shall be revoked. Defendant 2 will implement the procedure for cancellation of ownership transfer registration, which was completed on July 2, 2015 by the Changwon District Court Branch of the Republic of Korea with respect to the real estate listed in the separate sheet No. 15319, Jul. 2, 2015.

2. Purport of appeal

The judgment of the first instance is revoked. All of the Plaintiff’s claims against the Defendants are dismissed.

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the court of first instance, except for the case’s 4th page No. 8 of the judgment of the court of first instance and the case’s 2th page, and thus, it is acceptable to accept this as it is in accordance with the main sentence of

2. Parts to be dried;

2. Determination as to the defendants' assertion

A. Judgment on the assertion of legacy

Defendant 1 asserted that he donated the instant real estate to Defendant 1, who was registered as the sole child on public register, by a will before the month when Nonparty 1 died. However, there is no evidence to support the existence of a valid will consistent with the requirements for a will under Articles 1065 through 1070 of the Civil Act. Thus, the above Defendant’s above assertion is without merit.

B. Determination on the assertion of retroactive restriction

1) Relevant legal principles

A person who becomes a co-inheritors after the commencement of inheritance or after the judgment becomes final and conclusive, may naturally participate in the division with other co-inheritors in cases where the inherited property has not yet been divided or disposed of. However, in cases where other co-inheritors have already divided or disposed of inherited property before recognition, the proviso of Article 860 of the Civil Act that limits the retroactive effect of recognition is applied to cases where the inherited property has already been divided or disposed of by other co-inheritors before recognition, and thus, the person to whom recognition after the commencement of inheritance may not deny the validity of the division or other disposal by other co-inheritors. In such cases, Article 1014 of the Civil Act recognizes a right equivalent to the value of the inherited property to other co-inheritors by allowing the party to whom recognition was made to claim payment of the value of the inherited property to the other co-inheritors, thereby rationally adjusting the interests and existing legal relationships. Therefore, the inherited property already divided or disposed of by the co-inheritors before recognition is finally reverted to the person who acquired it after the commencement of inheritance (see Supreme Court Decision 2006Da3796, Jul. 26, 20076).

2) Determination

As seen earlier, the plaintiff et al. filed a lawsuit seeking confirmation of paternity with the non-party 1, and the quoted judgment became final and conclusive on July 1, 2016, and the defendant 1, the inheritor of the non-party 1, disposed of the real estate indicated in the attached Table 1, July 2, 2015, which was the previous successor, to the defendant 2, and completed the registration of ownership transfer. Accordingly, the plaintiff et al., the plaintiff et al. is entitled to dispose of the real estate listed in the attached Table 1, as it falls under the "a person who becomes co-inheritors by the final and conclusive judgment after the commencement of inheritance" under Article 1014 of the Civil Act and only claim for payment of the purchase price received from the defendant 2, according to his share of inheritance, can be exercised, and the disposal of the real estate listed in the attached Table 1, the ownership of which is final and conclusive, cannot be denied. The defendants' assertion

Therefore, we cannot accept the Plaintiff’s claim for cancellation of ownership transfer registration with respect to 4/5 shares of the real estate stated in the attached Table 1 list against the Defendants.

3. Judgment on the plaintiff's conjunctive assertion

The Plaintiff’s sales contract concluded on June 25, 2015 between the Defendants was a fraudulent act against the Plaintiff, etc. who has the right to claim cancellation of the registration based on the right to claim restitution of inheritance regarding the real estate listed in the attached Table 1, and Defendant 2 is a malicious beneficiary. Defendant 2 revoked the above sales contract, which is a fraudulent act, and Defendant 2 is obligated to implement the procedure for cancellation of the ownership transfer registration in its future as restitution.

The obligee's right of revocation is not allowed to exercise the right to preserve the obligor's responsible property for all creditors by cancelling the act in which the obligor reduces his/her general property with the knowledge that it would prejudice the obligee (see Supreme Court Decision 94Da2534 delivered on February 10, 1995, etc.).

With respect to this case, the plaintiff shall exercise the right of revocation in order to preserve the right to claim the cancellation of ownership transfer registration based on the inheritance recovery, and in light of the above legal principles, the revocation of fraudulent act and the right to restitution with specific property claims as the right to be preserved are without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim against the defendant 1 against the defendant 1 is accepted within the scope of the above recognition, and the remaining claim is dismissed as without merit, and it is dismissed as there is no ground. Among the judgment of the court of first instance, the part against the defendants who ordered the defendants to implement the procedure for cancellation of ownership transfer registration as to the 4/5 share of the real estate listed in the annexed Table 1, is unfair, and it is so unfair, and the plaintiff's claim against the defendants as to the revoked part is all dismissed, and the remaining appeal by the defendant 1 is dismissed. It is so decided as per Disposition.

【Attachment List of Selectioners and List of Real Estate]

Judges Kim Jong-sung (Presiding Judge)