Plaintiff (Law Firm Jeong-dam et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Jins, Attorneys Jeong Il-sung et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2006Gahap8854 Decided December 24, 2008

March 26, 2010

1.The judgment of the first instance shall be modified as follows:

A. The plaintiff (Counterclaim defendant)'s main claim is dismissed.

B. The Defendant (Counterclaim Plaintiff) against the Plaintiff (Counterclaim Defendant)

(1) On December 7, 2009, the procedure for the registration of transfer of ownership due to the return of legal reserve of inheritance as of December 7, 2009 is conducted with respect to the share in the same list of real estate listed in the annexed list 1, 3, 5, 7, and 14;

(2) The amount of KRW 563,048,746 and interest thereon shall be paid at the rate of 5% per annum from March 27, 2010 to April 30, 2010, and 20% per annum from the next day to the date of full payment.

C. The plaintiff (Counterclaim defendant)'s remaining conjunctive claim is dismissed.

2. The defendant-Counterclaim claim and the provisional payment claim filed in the trial are dismissed, respectively.

3. The total cost of a lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) and the remainder shall be borne by the Plaintiff (Counterclaim Defendant), while the total cost of a lawsuit and a counterclaim shall be borne by the Defendant (Counterclaim Plaintiff). The cost of an application for the return of provisional payment shall be borne by the Defendant (Counterclaim Plaintiff).

4. Paragraph 1-b. (2) may be provisionally executed.

1. Purport of claim

A. Purport of the principal claim

(1) The purport of the claim in the first instance trial

(A) The primary claim: The defendant (Counterclaim Plaintiff; hereinafter the defendant; hereinafter the same shall apply) and the co-defendant 2 (the non-party 3 of the judgment of the Supreme Court) of the first instance trial (the plaintiff was in the first instance trial and withdrawn the lawsuit against co-defendant 2 of the first instance trial; hereinafter the same shall apply) shall be jointly and severally paid to the plaintiff (the counter-defendant 3; hereinafter the same shall apply) 4,057,834,664 won and 5% per annum from September 21, 2005 to January 8, 2008, and 20% per annum from the next day to the date of full payment.

(B) Preliminary claim: The defendant shall pay to the plaintiff 2,389,934,579 won, non-party 3 shall be 5% per annum from September 21, 2005 to January 8, 2008, and 20% per annum from the next day to the day of full payment.

(2) The purport of the claim in the trial at the trial (the plaintiff withdrawal of the primary claim in the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the trial at the next preliminary claim was added

(A) The primary claim: The defendant shall pay to the plaintiff 2,760,071,681 won with 5% interest per annum from September 21, 2005 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment (the plaintiff shall be entitled to return the value which is the primary cause of the claim, which is the cause of the impossibility of return of the original claim, and the return of the original claim and the return of the value which is the preliminary one on the premise that the return of the original claim may be selectively claimed).

(B) Preliminary claim: ① The Defendant shall perform the Plaintiff’s procedure for registration of ownership transfer for the share in the column of “share in claim” listed in the separate sheet listed in the annexed sheet No. 6 list. ② The Defendant shall pay to the Plaintiff 73,718,704 won and 653,919,149 won from September 21, 2005 to the date of delivery of the duplicate of the complaint of this case, and 20% per annum from the following day to the date of full payment. The Defendant shall pay to the Plaintiff 119,79,555 won, which is calculated by the rate of 20% per annum from the day after the application for modification of the claim of this case was served on December 2, 2009 to the day of full payment.

B. Claim for a counterclaim (the defendant raised a counterclaim in the first instance)

With respect to the Defendant, the Plaintiff: (a) from January 31, 2008 to January 31, 2008; (b) from April 30, 2007 to April 31, 2007 to April 30, 2007 (it is clearly stated in the counterclaim as of January 31, 2008; (c) the amount calculated at the rate of 5% per annum until April 30, 207 to April 30, 2007; (d) the amount calculated at the rate of 20% per annum from June 111, 2009 to the date of full payment; (e) the amount calculated by the Defendant with the Seoul Central District Court from June 11, 2009 to the refund of KRW 200,000 per annum; and (e) the amount calculated by the Defendant with the deposit KRW 300,000 to 10,000; and (e) the amount calculated by the Defendant with the deposit KRW 3050,3080.9.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff as to the conjunctive claim in the first instance shall be revoked. The defendant shall pay to the plaintiff 2.5 billion won with 5% interest per annum from January 9, 2008 to December 24, 2008, and 20% interest per annum from the next day to the day of full payment.

Defendant: The part against Defendant in the judgment of the first instance court shall be revoked, and the Plaintiff’s claim corresponding to the above revocation shall be dismissed.

3. Application for the return of household supplies;

The plaintiff shall pay to the defendant 197,213,968 the amount after deducting the amount exceeding the judgment amount cited by the trial court, and the amount calculated by applying 5% per annum from January 14, 2010 to the ruling of the trial court, and 20% per annum from the next day to the date of full payment.

1. Basic facts

A. The relationship between the parties

(1) The deceased non-party 1 (hereinafter referred to as the “the deceased”) was a doctor who operated the ○○○○○○○○ Council, and died on September 20, 2005. The deceased’s heir is Nonparty 2, who is the wife, the Plaintiff, the Defendant, and the non-party 3.

(2) The Defendant, as a medical specialist, has been operating the △△△ in Gangdong-gu Seoul Metropolitan Government from May 1990, and Nonparty 3 had worked as a management director from around 200 to 2004 from around 200 to around 2004.

(b) A donation before birth and testamentary gift of the deceased;

(1) The Deceased has donated real estate, cash, etc. to Nonparty 2, Defendant, and Nonparty 3 (hereinafter referred to as “Defendant, etc.”) before his birth.

(2) On April 11, 1997, the Deceased prepared a testamentary document stating that “each property listed in the attached Table 2 shall be bequeathed to the Defendant, etc.” (hereinafter “the testamentary document of this case”) by the document No. 1843 of the Gangseo-gu General Law Office No. 1997, Apr. 11, 1997.

(3) The Plaintiff was unable to receive a gift or testamentary gift from the deceased.

(c) Payment of inheritance tax and imposition of inheritance tax;

(1) From March 20, 2006 to May 3, 2006, the Defendant, etc. reported and paid KRW 2,283,815,100 in total as inheritance tax due to the deceased’s death (= Nonparty 2’s portion 594,547,460 + Defendant’s portion 1,104,595,320 + Defendant’s portion 1,104,672,320 + Nonparty 3’s portion 584,672,320).

(2) However, on April 10, 207, the tax authorities determined KRW 2 billion (a total of KRW 3,632,64,127 of financial assets in the name of Nonparty 2 who was reported as donated property at the time of the above inheritance tax return, KRW 1,632,64,127 other than KRW 1,68, KRW 200, KRW 397, KRW 467 of financial assets in the name of Defendant 3 list 3; KRW 4,640,103, and KRW 767 of financial assets in the name of Defendant 2; KRW 97, KRW 297, KRW 97, KRW 97, KRW 297, KRW 97, KRW 97, KRW 97, KRW 97, KRW 297, KRW 97, KRW 97, KRW 97, KRW 297, KRW 97, KRW 97, KRW 297, KRW 97, KRW 297, KRW 29636, KRW 363, etc.).

(3) Defendant and Nonparty 3 appealed to the Tax Tribunal on the above disposition. On April 17, 2009, the Tax Tribunal partially accepted Defendant and Nonparty 3’s application and rendered a decision to the effect that “The Tax Tribunal shall deduct some of the property recognized as a gift to Nonparty 2 from the inherited property, and re-examine the property recognized as the property, such as gift to Defendant and Nonparty 3, and correct its tax base and tax amount.”

On December 26, 2008, Nonparty 2 filed an appeal against the above disposition with the Tax Tribunal, separately from Defendant and Nonparty 3, and the Tax Tribunal rendered a decision on December 26, 2008 to the effect that “The gift value related to the apartment as stated in the attached Table 1 List 3, which is recognized as a donation to Nonparty 2, is KRW 52 million, and corrected the tax base and tax amount.”

(4) On August 17, 200, the tax authority conducted a reinvestigation, recognized the inheritance tax amount of KRW 17,396,034,040 on August 17, 2009 (the taxation authority recognized KRW 52 million as the gift amount of Nonparty 2 in relation to the apartment as indicated in attached Table 1 List 3 in that process, and included the remaining portion of the financial assets listed in attached Tables 3 through 5, excluding the rental income again calculated in attached Tables 4 List 5 List 5, 6,034,658, 479, additional tax of KRW 591,64,459, additional tax of KRW 426,382,63 as the total amount of tax imposed on Nonparty 25, the amount of tax refunded to Defendant 2,281, the amount of tax refunded to Nonparty 305, the amount of tax refunded to Defendant 2,381,405,751,7481, and the amount of tax refunded to the Plaintiff 2,363051,51.

[Ground of Recognition] A without dispute, Gap evidence 1 through 9, Gap evidence 12-1, Gap evidence 27-1 through 6, Gap evidence 28-1 through 4, Gap evidence 32-3, Gap 61, 68, Eul evidence 3, Eul evidence 3, 7, Eul evidence 18-3, Eul evidence 36-5, Eul evidence 75, and the purport of the whole pleadings

2. As to the main claim

A. The plaintiff's assertion

(1) Claim for return of value due to the impossibility of returning originals

(A) Although the return of the original object is a method of the return of the legal reserve of inheritance, if the return of the original object is not possible, the return of the original object can be made, and the impossibility of the return of the original object here means not only absolute, physical, but also cases where the return of the original object cannot be expected in light of the empirical rules in social life or the concept of transaction.

(B) Considering the dispute circumstances in the instant case, the background leading up to the disposal of real estate for the purpose, and the developments leading up to the change in the use relationship, the return of the original properties to the Plaintiff constitutes an impossible one contrary to the good faith principle.

(C) Therefore, the Defendant is obligated to pay the Plaintiff the amount of KRW 2,760,071,681 equivalent to the value at the time of closing the argument in the trial of the original object to be returned to the Plaintiff, and the interest in arrears from the day following

(2) Claim for return of value as a selective claim for return of legal reserve of inheritance

(A) Since it is not possible to return the originals as a way to return the legal reserve of inheritance, the claimant may select and claim the return of the value.

(B) The plaintiff claims the return of legal reserve of inheritance as the return of value. The defendant is obligated to pay the plaintiff interest in arrears from the date following the commencement date of the inheritance, which is equivalent to the value at the time of the commencement of the inheritance of the property subject to the return of legal reserve of inheritance, to the plaintiff.

(b) Markets:

The return of legal reserve of inheritance is the principle of the return of the original property, and if it is impossible to return the original property, the equivalent amount shall be returned (see, e.g., Supreme Court Decision 2004Da51887, Jun. 23, 2005). Thus, the claimant of legal reserve of inheritance cannot claim one of the restoration of the original property and the return of the value thereof in violation of the above legal principles. In addition, as seen later, it is difficult to view that the whole return of the original property, which is the object of the return of legal reserve of inheritance, as alleged by the plaintiff, has become impossible, the plaintiff's above assertion is without merit.

3. As to the main claim

A. The plaintiff's assertion

(1) The Defendant is obligated to implement the registration procedure for transfer of ownership on the share in each of the real estate in the column of “share in claim” listed in the separate sheet No. 6, which is the return of legal reserve of inheritance to the Plaintiff.

(2) The Defendant is obligated to pay to the Plaintiff the amount of KRW 773,718,704 in value of the property, the return of which is impossible to return its original property, and interest in arrears thereon.

(3) The Defendant is obligated to pay to the Plaintiff 119,79,555 won, which is part of the Plaintiff’s share among the profits derived from using and gaining profit from the real estate that is the subject of return of the original property, and interest in arrears thereon.

(b) Method of calculating shortage in legal reserve of inheritance;

The shortage of the plaintiff's legal reserve of inheritance may be calculated as follows:

Shortage in legal reserve = [A] 】 The ratio of legal reserve of inheritance to the person with the right to legal reserve of inheritance (B) - The amount of special profit (C) - The amount of net inheritance (D) of the person with the right to legal reserve of inheritance of the person with the right to legal reserve of inheritance.

A = active inherited property £« Amount of donations ? Amount of inherited property - Amount of inherited debts

B = Lineal descendants and spouse of an inheritee: 1/2 of the inheritance stipulated by law.

C = Amount of increase in the number of persons entitled to legal reserve of inheritance ＋ amount of increase in quantity received.

D = The amount of property acquired by inheritance to the person having the right to legal reserve of inheritance £­ The share of inheritance debts.

(c) Basic property (A) in calculating legal reserve of inheritance;

(1) A legal reserve of inheritance shall be calculated on the basis of the amount calculated by adding the value of the donated property at the time of the commencement of the inheritance to the value of the donated property at the time of the commencement of the inheritance and deducting the amount of an inherited obligation. If there is a person who has made special profits from the donated property from among co-inheritors by the donation of property before the commencement of inheritance, the donation shall be excluded from the application of Article 1114 of the Civil Act, regardless of whether the donation would have been made before the commencement of inheritance one year, and whether both parties knew that the damage would be inflicted, and the value of the donated property, which is the basis of calculating legal reserve of inheritance, shall be calculated at the price at the time of the commencement of the inheritance of the deceased decedent (see Supreme Court Decision 9

Then, I will examine the property to be included in the basic property in calculating the legal reserve of inheritance.

(2) Testamentary gift property, an affirmative inherited property

(A) The non-contentious part

The deceased bequeathed the real estate listed in the attached list 3 through 1 to the defendant through the testament of this case, and bequeathed the real estate listed in the same list of non-party 3 to the non-party 3, and the fact that the defendant and the non-party 3 completed the registration of ownership transfer based on testament on September 20, 2005 with respect to each of the above real estate on or around December 2005 is not a dispute between the parties. Each of these real estate is included in the active inherited property bequeathed by the defendant or non-party 3, which serves as the basis for calculating the legal reserve of inheritance.

(B) As to the real estate listed in the [Attachment 2] List 1, 2]

In light of the facts without dispute, Eul evidence Nos. 3 and the purport of the oral argument, the deceased is acknowledged as having completed the registration of transfer of ownership based on the gift of December 8, 2005 to the defendant on the same day after completing the registration of transfer of ownership based on "the legacy of September 2005" with respect to each of the above real estate on December 12, 2005 through the testamentary gift of this case to the non-party 2. As long as the non-party 2 completed the registration of transfer based on the testamentary gift of December 8, 2005 from the deceased, the non-party 2 disposes of each of the above real estate which was bequeathed from the deceased, merely because the non-party 2 disposes of it separately according to the deceased's will, each of the above real estate is bequeathed by the deceased, and it is included in the active inherited property which is the basis of calculating the legal reserve of inheritance.

(C) As to the property listed in Annex 2 List 2

In light of the facts without dispute, Eul evidence Nos. 3 and 10, and the overall purport of the pleadings, the deceased, through the instant testament certificate, deposited the plaintiff and the defendant, etc. as a person subject to the deposit on September 28, 2006, pursuant to the management and disposal plan of the Housing Redevelopment Association, with respect to the land to be sold and the building and the liquidation money to be paid by the deceased from the above redevelopment Cooperative pursuant to the housing Redevelopment Association's management and disposal plan of the Housing Redevelopment Association, Gangdong-gu Seoul Metropolitan Government (number 1 omitted) and 273m2 and 15m2 of the same (number 2 omitted). According to the above agreement, the above redevelopment Cooperative shall be deemed to include the amount remaining 591,956,347 won, excluding the money that the deceased would receive at the time of his survival among the liquidation money, and the plaintiff and the defendant shall be deemed to have received the above deposited property as testamentary gift property from the defendant at the time of the trial.

(D) As to the real estate stated in the Attachment 2 List

1) The fact that Nonparty 3 received the testamentary gift from the deceased by means of the instant testamentary document that was attached to the list No. 2 List No. 3 does not conflict between the parties. Therefore, the said real estate is included in active inherited property, which serves as the basis for calculating

2) The Plaintiff asserted to the effect that “the Plaintiff concluded all disputes related to the pertinent real estate with Nonparty 3, agreed not to include the said real estate in the active inherited property, which is the basis for calculating the legal reserve of inheritance, and received KRW 185 million. The Plaintiff thereafter claimed for exclusion of the said real estate from the active inherited property, and the Defendant consented thereto. Furthermore, the Plaintiff and Nonparty 3 agreed to withdraw the legal reserve of inheritance with Nonparty 3 and received KRW 300 million. Therefore, the said real estate should be excluded from the basic property for calculating the legal reserve of inheritance.”

In light of the facts without dispute, Gap 52 evidence Nos. 1, 2, 66, Eul evidence Nos. 1, 1, 2, and 15-1, 2 of evidence Nos. 15-2, and Eul evidence Nos. 1, 15-2 of the whole pleadings, the plaintiff, on July 6, 2006, issued a decision to prohibit disposal as Seoul East East District Court 2006Kahap1236 on Oct. 16, 2007, the plaintiff did not request the return of the above real estate from the non-party 3 to the non-party 185 billion won on the ground that "the plaintiff did not withdraw an application for prohibition of disposal of the above real estate or deliver documents to the non-party 3, and the plaintiff cannot request the return of the above real estate from the non-party 3 to the non-party 3 with respect to the claim for restitution of inherited property or forced inheritance." The plaintiff cannot request the return of the above real estate from the non-party 3000 million won.5 billion won.

Comprehensively taking account of the above facts and the developments leading up to the dispute and the conclusion between the plaintiff and the non-party 3 recognized by the evidences, and the circumstances leading up to the above agreement, it is reasonable to interpret the purport of the agreement on December 28, 2009 to the effect that “In order to resolve all disputes surrounding the return of the forced portion of inheritance between the plaintiff and the non-party 3, the plaintiff received 300 million won in addition to 185 million won from the non-party 3 to return the forced portion of inheritance, thereby withdrawing the lawsuit for the return of the forced portion of inheritance of this case against the non-party 3, and the non-party 3 waives the claims derived from the return of the forced portion of inheritance, and both parties shall not be held liable for any cause related to the above.

However, in calculating inherited property, which is the basis for calculating legal reserve of inheritance between the plaintiff and the defendant, the above real estate should not be excluded from the basic property according to an agreement between the plaintiff and the non-party 3. This does not change to the effect that the defendant expressed his/her consent to exclude the above real estate from the basic property at once (the defendant's preparatory document on January 21, 2008 appears to have expressed this purport according to the preparatory document, but it is merely a statement made by the defendant and the non-party 3 on behalf of the non-party 3 at the court of first instance, and it does not seem to be acceptable in relation to the defendant's family affairs, and even if the defendant consented thereto, it can be argued otherwise at the appellate court thereafter). The above argument by the plaintiff is without merit.

(E) As to the financial assets listed in Appendix 3

The defendant asserts to the effect that “The financial assets listed in the attached Table 3 list are the assets that the deceased lent and managed in the name of Nonparty 2, and are included in the deceased’s property at the time of the death of the deceased, and constitutes active inherited property, the inheritance of which commences

It is reasonable to view that the above property of the deceased was the property donated to Nonparty 2, rather than the property that the deceased lent to Nonparty 2 and managed under the name of Nonparty 2, as the latter was considered to be the property that the deceased donated to Nonparty 2. Therefore, the above assertion by the defendant is not accepted.

(f) Sub-determination

The details of property bequeathed, which forms the basis for calculating legal reserve of inheritance, are as shown in the separate sheet Nos. 2 as shown above. On the other hand, there is no dispute, and according to the overall purport of the evidence Nos. 59 and 61, the value of these property at the time of inheritance is the same as the value of the commencement date of inheritance as stated in the above list.

(3) Gift property;

(A) The non-contentious part

As indicated in the list No. 1, as indicated in the list No. 2, the deceased’s donations to Nonparty 2, including the real estate listed in the list No. 1, (2), and (4), the real estate listed in the same list No. 6 through (9) to the defendant, and the real estate indicated in the above list No. 31 to Nonparty 3, are not in dispute between the parties. Such real estate shall

(B) As to the property listed in [Attachment 1 List 3]

In light of the facts without dispute, Gap 5, 61 evidence, Eul 3, 68, 75 evidence, and the purport of the whole pleadings, the non-party 2 concluded a sales contract with the non-party 50 million won to purchase the above apartment as stated in attached Table 1 list 50 million won [the non-party 2 shall be deemed to have purchased the apartment as stated in attached Table 1 list 50 million won from the deceased on April 17, 2003, with the non-party 4 on October 29, 2003 and the non-party 2 shall be deemed to have purchased the apartment as stated in attached Table 1 list 50 million won [the non-party 2 shall be deemed to have purchased the apartment as 50 million won on November 5, 200, the non-party 2 shall be deemed to have purchased the apartment as 500 million won on December 24, 200 to have sold it under the name of the deceased or the non-party 2's account.

(C) As to the property listed in Schedule 1 5, 0, 40

In the course of taxation of inheritance tax by the tax authority after investigating the decedent's inherited property, the fact that the tax authority included the remaining portion of each financial property listed in the attached Tables 3 through 5, excluding those recognized as rental income, in the attached Tables 4 List (5), and the financial property listed in the attached Tables 5 List 7, excluding the financial property listed in the attached Tables 3

한편 갑 31호증의 2, 갑 32호증의 2, 갑 35호증, 갑 59, 60호증, 갑 63호증의 1 내지 6, 을 13호증의 1, 을 71호증, 을 72호증의 1의 각 기재, 제1심 증인 소외 6, 7의 각 일부 증언, 제1심 법원의 강동세무서장에 대한 2007. 12. 13.자 사실조회결과, 변론 전체의 취지를 종합하면, 망인은 1995년경부터 1997년경까지 망인 소유의 서울 송파구 (이하 생략) 대지 위에 소외 8 주식회사와 공동으로 97세대의 □□□□□아파트를 건립하는 시행사업을 하였던 사실, 망인은 위 사업에서 얻은 분양수입금과 자신이 소유하고 있던 부동산이나 피고 등에게 이미 증여한 부동산의 임대소득 및 병원운영을 통하여 얻은 수입 등의 대부분을 피고 등 명의의 예금계좌나 보험, 채권 등의 금융상품에 분산하여 이를 관리하여 온 사실, 세무당국의 조사 결과 망인의 위 시행사업과 관련한 1996년의 수입금액은 12,681,984,367원, 소득금액은 4,828,366,974원으로 결정된 사실, 피고 등은 1995. 9. 27., 1995. 10. 27., 1996. 4. 27. 3차례에 걸쳐 18억 8,000만 원 상당의 만기 5년의 현물채권 또는 장기신용채권을 구입한 이후 위 각 채권의 만기일인 2000. 9. 27., 2000. 10. 27., 2001. 4. 27. 위 각 채권의 만기 환급금의 1/2씩을 피고, 소외 3 명의로 국민은행에 예치하였고, 위 금액의 합계는 4,865,196,600원으로 피고, 소외 3의 위 금융자산의 상당 부분을 차지하고 있는 사실, 소외 2는 전업주부로서 망인이 사망할 당시까지 별다른 수입원이 없었던 사실, 피고는 1993. 4. 27. 서울 강동구 천호동 (지번 3 생략) 지상 건물의 소유권을 취득한 데 이어 1995. 12. 11. 서울 강동구 천호동 (지번 4 생략), (지번 5 생략) 지상 건물의 소유권을 취득하여 위 각 건물의 임대수입을 얻고 있었으며 의사로서 일정한 소득을 얻고 있었으나, 피고가 종합소득세 납부와 관련하여 강동세무서장에게 신고한 종합소득액은 1993년에 45,559,254원, 1994년에 43,835,982원, 1995년에 58,652,223원, 1996년에 97,687,337원, 1997년에 145,954,424원, 1998년에 114,550,288원, 1999년에 97,255,972원, 2000년에 108,920,794원이고, 그 이후로도 매년 약 1억 원 정도인 사실, 소외 3 역시 생모인 소외 9가 사망함에 따라 1989. 3. 12. 서울 강동구 둔촌동 (지번 6 생략) 지상 건물의 2분의 1 지분과 하남시 신장동 (지번 7 생략) 지상 건물을 상속받고 1997. 5. 12. 서울 송파구 오금동 (지번 8 생략) 지상 건물의 소유권을 취득하여 그 임대수입을 얻는 이외에 망인이 경영하던 병원에 근무하면서 어느 정도의 소득을 얻고 있었으나 소외 3이 종합소득세 납부와 관련하여 강동세무서장에게 신고한 종합소득액은 1994년에 47,230,455원, 1995년에 38,307,500원, 1996년에 35,994,274원, 1997년에 63,263,707원, 1998년에 53,925,363원, 1999년에 74,175,404원, 2000년에 71,271,150원이고, 그 이후로도 매년 약 6,000만 원에서 7,700만 원 정도인 사실이 각 인정된다.

The following circumstances revealed by the evidence prior to these facts: (i) the deceased was active as a long-term intention before his life; (ii) the deceased was able to secure a considerable amount of economic benefits through the business of building and selling Dolary apartment apartment between around 1995 and around 1997; (iii) the deceased continuously donated the real estate to the defendant, etc. before her life; and (iv) the non-party 2, when considering the degree of the income activities of the non-party 3, it is difficult to view that the non-party 3 formed the property to purchase the claim amounting to KRW 1.88 billion around 1995; and (iv) even according to the defendant's assertion, the defendant did not clearly state the above hospital income and rent income in a separate bank account from the above financial assets; and (v) the defendant did not clearly state the list of the deceased's property to the above non-party 4 by preparing a testamentary gift on the real estate after her death; and (iv) it did not clearly state the above list of the deceased's property.

[Attachment 3 to 5] The deposit money in the attached Table 4 List 5 is withdrawn on October 27, 2005 at maturity of KRW 260 million deposited in the deposit account as stated in the attached Table 4 List 2. The deposit money in the attached Table 5 List 7 can be recognized that the defendant 3 opened the account on February 20, 2006 after the death of the deceased. Accordingly, the deposit amount in the attached Table 4 List 5 List 5, and the deposit amount in the attached Table 5 List 7 shall not be deemed to have been donated from the deceased, and the non-party 3 shall not be deemed to have donated from the deceased, and at least KRW 1,174,057,092 of the above financial assets shall be the defendant's lease income, and at least KRW 1,723,210,153 of the above financial assets shall be deemed to have been the lease income of the non-party 3. Therefore, the above amount shall be deducted respectively.

(D) Attached 4 List 8 Property

According to Gap evidence No. 61, Eul evidence No. 75, and the purport of the whole pleadings, it is acknowledged that the deceased's property stated in the attached list No. 4, which was deposited in the deposit account in the non-party 10's name, was donated to the defendant, but it was only deposited in the account opened in the non-party 10's name, which is the non-party 2's fault. The above property is included in the donated property

(E) As to the real estate listed in [Attachment 1] List

According to the overall arguments and arguments, evidence Nos. 60, 65, 69-1, evidence Nos. 69-1, 2, and 70-1 of evidence Nos. 69-1, 2, and 70-1 of evidence Nos. 69-2, it is recognized that the deceased donated the real estate indicated in attached Table 1 List No. 9 to the defendant, and the defendant sold the real estate to Nonparty 12, etc. on March 10, 2004 with an amount of KRW 635 million. Each of these real estate is included in the donated property of the defendant, which

(f) As to the real estate listed in Schedule 2 and 6

The Plaintiff asserts to the effect that “the deceased has donated each real estate listed in [Attachment 6 List 2 and 6 to the Defendant, and the said real estate shall also be included in the basic property for calculating legal reserve of inheritance as the Defendant’s donated property.”

According to the overall purport of Gap evidence 31-1, 3, and 18, the defendant asserted that "the above real estate in the name of the defendant is a real estate owned by the deceased and is merely a title trust to the defendant," and that "the above real estate is a real estate owned by the deceased and has been under a title trust to the defendant" prepared by the lessee of the above real estate. However, according to the purport of Gap evidence 60, 65, and the whole arguments, the defendant asserted the above facts and submitted the confirmation to the effect that "the above real estate is owned by the deceased and has been managed by the deceased by concluding a lease contract directly." However, according to the purport of the whole arguments and the whole arguments, the above assertion and the credibility of the confirmation document are lost since the defendant can be known to obtain a favorable judgment in his divorce lawsuit with the non-party 13. Thus, the above facts alone are insufficient to recognize that the above real estate was actually owned by the defendant and it was insufficient to accept the above part of the plaintiff's assertion.

(G) Sub-determination

The value of the donated property, which is the basis for calculating legal reserve of inheritance, is as shown in the separate sheet No. 1 as above, and there is no dispute, and according to the overall purport of each of the statements and arguments No. 53,61, No. 69-1, No. 70-1, and No. 70, the value at the time of inheritance of these property is as stated in the above list “date of commencement of inheritance”.

(4) The amount of inherited debts;

(A) The deceased, at the time of his death, bears the obligation to return the deposit equivalent to KRW 343 million and the obligation to pay public charges equivalent to KRW 203,845,771 as well as KRW 203,845,771 as well as the obligation to pay the amount of KRW 44-1,200 as well as the obligation to pay the amount of delinquent tax inherited to his heir due to the deceased’s failure to pay part of the global income tax, value-added tax, etc. on the leasing business from 1998 to 2005, as the deceased’s failure to engage in the real estate leasing business, constitutes an inheritance obligation of KRW 742,607,281 (i.e., KRW 343,000 + KRW 203,845,710 + KRW 195,761,510).

(B) The Defendant asserts to the effect that “the net’s global income tax and the obligation to pay value-added tax shall not be deducted as an inheritance obligation.”

However, Article 1113(1) of the Civil Act provides that the calculation of legal reserve shall be made by deducting the "debt at the time of commencement of inheritance". It is reasonable to interpret that the above obligation includes not only the private law obligation but also the public law obligation. Therefore, the above obligation is naturally subject to deduction as inheritance obligation. The defendant's argument above is without merit.

(C) The Plaintiff asserts to the effect that “The inheritance tax imposed on the deceased’s death is not an inheritance obligation, but is similar to the inheritance obligation, and thus, it should be deducted from the property that forms the basis of calculating the legal reserve like the inheritance obligation.”

However, inheritance tax is an individual tax imposed on the inheritor by reason of inheritance, and its nature differs from that of the inheritance obligation that is inherited to the inheritor at the time of the death of the decedent. Therefore, it cannot be viewed as an “debt at the time of the commencement of inheritance” under Article 1113(1) of the Civil Act. The Plaintiff’s assertion has no

(5) Sub-decisions

Property(A) which forms the basis for calculating legal reserve of inheritance shall be calculated as follows:

29,265,125,241 won (=property 7,596,269,797, and property bequeathed in the attached Table 2 List + KRW 22,41,462,725 of the donated property listed in the attached Table 1 List - Inheritance Obligations KRW 742,607,281)

C. Plaintiff’s special proceeds (C) and net inheritance amount (D)

(1) Special proceeds (C)

(A) The Plaintiff’s special profit amount does not exist since it was acknowledged in the facts that the Plaintiff received a donation from the deceased or did not have any property bequeathed.

(B) The Defendant asserts to the effect that “the Plaintiff received KRW 485 million from Nonparty 3 with respect to the real estate stated in the attached Table 2 List 3,000,000,000 from Nonparty 3. Accordingly, the Plaintiff received a donation or testamentary gift equivalent to the above amount from the Deceased. Therefore, the Plaintiff claimed to the effect that the amount equivalent to the above amount should be deducted from the special benefit amount in calculating the shortage of the Plaintiff’

The fact that the plaintiff received KRW 485 million from the non-party 3 is recognized as above. However, the plaintiff filed a lawsuit against the non-party 3 seeking the return of legal reserve of inheritance but agreed with the non-party 3 to the effect that "the dispute over the return of legal reserve of inheritance between the plaintiff and the non-party 3 is terminated," and the above money was received also as acknowledged above. Accordingly, according to the above facts of recognition, the plaintiff received the above money from the non-party 3 in relation to the claim for the return of legal reserve of inheritance against the non-party 3, and it cannot be deemed that the plaintiff received the above money from the non-party 3, and it is not equivalent to the donation or legacy from the deceased.

(2) Net amount of inheritance (D)

(A) No property acquired by the Plaintiff by inheritance does not exist (the taxation office imposes inheritance tax on the Plaintiff by deeming that KRW 252,184,120, which is equivalent to the statutory share of inheritance, out of KRW 1,134,942,037, out of the amount of KRW 1,134,942,037, which was deposited in the deceased’s deposit account, was donated to the Plaintiff; however, there is no dispute between the parties that the said KRW 1,134,942,037 was donated to the Plaintiff or the Defendant or that the said KRW 1,134,9

(B) Meanwhile, in a case where the content of performance, like a pecuniary obligation, is jointly inherited, such performance is naturally divided and reverted to co-inheritors according to the statutory share of inheritance at the time of commencement of inheritance (see Supreme Court Decision 97Da8809, Jun. 24, 1997, etc.). Therefore, it is reasonable to deem that the inherited debt amounting to KRW 742,607,281, which was recognized earlier, was inherited according to the statutory share of inheritance to the Plaintiff and the Defendant, etc. Therefore, the Plaintiff’s inheritance debt share amounting to KRW 165,023,840 (=742,607,281 x 2/9).

(d) The plaintiff's shortage in legal reserve of inheritance or legal reserve of inheritance;

(1) As the Plaintiff’s children, the legal reserve of inheritance is 1/2 of the deceased’s legal reserve of inheritance, the Plaintiff’s legal reserve of inheritance is 1/9 (=2/9 x 1/2). The Plaintiff’s legal reserve of inheritance is 3,251,680,582 (=29,265,125,241 x 1/9).

(2) Since the Plaintiff’s special proceeds (C) and net inheritance (D) are as recognized earlier, the Plaintiff’s shortage in legal reserve of inheritance is calculated as follows.

3,416,704,422 won (=3,251,680,582 won -0 won + 165,023,840 won)

(e) Order of persons liable to return legal reserve of inheritance and order of return;

(1) When there are several co-inheritors who received a gift or testamentary gift in return for the recovery of the legal reserve of inheritance, the heir can claim the recovery of the value of the gift or testamentary gift exceeding their own legal reserve of inheritance (see Supreme Court Decision 2006Da46346, Nov. 10, 2006, etc.). According to Article 11116 of the Civil Act, the person entitled to the legal reserve of inheritance can not claim the recovery of the gift unless the testamentary gift or testamentary gift is returned. Thus, if the gift or testamentary gift exists together, the person entitled to the legal reserve of inheritance should first claim the recovery of the testamentary gift against the person who received the testamentary gift, and even if there still remains in violation of the legal reserve of inheritance, the person entitled to the legal reserve of inheritance can claim the recovery of the excess portion from the testamentary donee (see Supreme Court Decision 2001Da6947, Nov. 30, 201).

(2) Excess amount due to the defendant et al.

When calculating the excess amount, etc. of legal reserve of inheritance of the defendant, etc., it shall be as follows:

본문내 포함된 표 소외 2 피 고 소외 3 ⓐ 수유액 [별지 2 목록 참조] 1,071,609,000원 4,329,237,747원 2,195,423,050원 ⓑ 수증액 [별지 1 목록 참조] 4,773,678,318원 10,212,189,003원 7,425,595,404원 ⓒ 특별수익액 [ⓐ + ⓑ] 5,845,287,318원 14,541,426,750원 9,621,018,454원 ⓓ 상속채무분담액 [상속채무액 × 법정상속지분] 247,535,760원 165,023,840원 165,023,840원 ⓔ 유류분액 [A × 유류분율] 4,877,520,873원 3,251,680,582원 3,251,680,582원 ⓕ 수유액 중 유류분 초과액 [ⓐ - ⓓ - ⓔ] 0 912,533,325원 0 ⓖ 유류분 초과액 [ⓒ - ⓓ - ⓔ] 720,230,685원 11,124,722,328원 6,204,314,032원

[Attachment 1]* Nonparty 2’s statutory inheritance shares 3/9, legal reserve of inheritance 1/6

The defendant, the non-party 3's share in statutory inheritance, 2/9, 1/9, respectively.

(3) Return rate of legal reserve of inheritance and amount of legal reserve of inheritance

The Defendant first returned KRW 912,533,325, which is equivalent to the excess amount of the legal reserve of inheritance to the Plaintiff, and the Defendant et al. subsequently returned KRW 2,504,171,097 (= KRW 3,416,704,422 – KRW 912,533,325) out of the Plaintiff’s shortage of legal reserve of inheritance, according to the ratio of excess amount of legal reserve of inheritance. The Defendant’s share of return and the amount of return are as follows / [2], / [3].

본문내 포함된 표 의무자 반환분담비율 ⓗ 반환액 수유 관련 피고 1/1 912,533,325원

/ [2]

본문내 포함된 표 의무자 ⓘ 반환분담비율 ⓙ 반환액 수증 관련 피고 11,124,722,328/18,049,267,045 1,543,453,706원

표 [3] ※ ⓘ : 피고의 ⓖ 값 / 피고 등의 각 ⓖ 값의 합 18,049,267,045

(i) 720,230,685 + 11,124,722,328 + 6,204,314,032)

ⓙ : 원고의 유류분 부족액 중 ⓗ 값을 공제한 나머지 2,504,171,097 × ⓘ

(4) Return rate of legal reserve

The ratio of return of legal reserve of inheritance to the amount of recovery and the amount of increase in the amount of recovery that the defendant owes to the plaintiff shall be as follows / [4] and / [5]:

본문내 포함된 표 의무자 ⓚ 반환비율 [피고의 ⓗ 값 / 피고의 ⓒ 값] 수유 관련 피고 912,533,325/14,541,426,750

/ [4]

본문내 포함된 표 의무자 ⓛ 반환비율 [피고의 ⓙ 값 / 피고의 ⓒ 값] 수증 관련 피고 1,543,453,706/14,541,426,750

[5] Table

(f) Methods of returning legal reserve of inheritance;

(1) In principle, the return of legal reserve of inheritance is the principle of the original return. The defendant is obligated to implement the registration procedure for transfer of ownership based on the legal reserve of inheritance on December 7, 2009, when the application for change of the purport of the claim was delivered as of December 2, 2009. The defendant is obligated to implement the registration procedure for transfer of ownership based on the legal reserve of inheritance on December 7, 2009, when the application for change of the purport of the claim was delivered on December 7, 2009.

(2) Meanwhile, if it is impossible to return originals, an amount equivalent to the value thereof shall be returned, and in the case of an order to return the value, the value thereof shall be calculated as at the time of the closing of pleadings at the fact-finding court proceedings (see Supreme Court Decision 2004Da51887, Jun. 23, 2005, etc.). According to the aforementioned facts-finding and historical evidence, it is reasonable to deem that the return of originals is impossible due to the reasons such as removal, sale, receipt of cash, etc. In the case of the property stated in the attached Table 1 list (7), (9), (0), and (2), and the property stated in the attached Table 2 list (2). Meanwhile, in full view of the above facts-finding, facts without any dispute, entry of evidence No. 53, and the purport of the entire pleadings, the value at the time of the closing of pleadings at the trial of the above property shall be the same as the value stated in the “value to be returned”

본문내 포함된 표 반환 재산 ⓜ 변론종결시 가액 반환할 가액 [ⓜ × ⓚ 또는 ⓛ] 수유 재산 별지 2 목록 ⑫ 675,347,022원 42,380,756원 수증 재산 별지 1 목록 ⑦ 0원 0원 별지 1 목록 ⑨ 635,000,000원 67,400,064원 별지 1 목록 ⑩ 5,425,872,382 575,912,046원 합 계 685,692,866원

[6] The value at the time of closing argument*

(12) Property listed in attached Table 2: The value at the time of inheritance 591,956,347 】 consumer price index on the date of closing argument 115 / consumer price index on the date of closing argument 10.8

Property listed in Annex 1 List 7: Since it was removed for new construction, it is reasonable to view the value as zero won at the time of closing the argument.

Attached 1 List 9 Property: The defendant sold it to a third party before the commencement of the inheritance, and it is reasonable to deem that it is the same as the value at the time of the commencement of the inheritance.

Property listed in attached Table 1 (1) shall be as listed in attached Table 4.

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 5% per annum under the Civil Act from March 27, 2010 to April 30, 2010, which is the date following the date of the closing of argument in the court of first instance, to dispute on the existence and scope of the obligation to return from March 27, 2010, the value return amounting to 685,692,866 won as the return of legal reserve of inheritance, and damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment (the Plaintiff claimed damages for delay from the next day to the date of commencing the proceedings, but the claim for damages for delay from the next day to the date of the obligee’s claim for reimbursement of the legal reserve of inheritance from January 2, 2008, which is the date of the date of the closing of argument in the court of first instance. Therefore, the Plaintiff’s claim for damages for delay from the next day after the closing of argument.

G. A claim for restitution of unjust enrichment

(1) The plaintiff's assertion

(A) When the Defendant leases the real estate listed in the attached list 6 List 2,850,00 won per month, 11,454,000 won per month, and 7,70,000 won per month while leasing the real estate listed in the attached list 6 List 6 List 6 List 6 List x 1,078,196,00 won for 49 months from the time of commencement of the inheritance due to the death of the deceased until December 2, 2009 (2.85 million won + 1,454,00 won + 77,00 won) x 49 months).

(B) Of the above profits, 119,79,555 won (=1,078,196,000 won x 1/9) equivalent to the return rate of legal reserve of inheritance against the Plaintiff (i.e., 1/9) constitutes unjust enrichment in relation to the Plaintiff.

(C) Therefore, the Defendant is obligated to pay the Plaintiff the aforementioned unjust enrichment and interest for delay.

(2) Determination:

(A) First of all, we examine the claims related to the real estate listed in [Attachment 6 List 2] and the real estate listed in [Attachment 6 List 6 List 6, and the real estate above is not subject to the return of legal reserve of inheritance. Thus, the plaintiff's above part of the real estate is without merit.

(B) According to the facts without dispute, Gap evidence Nos. 64, Eul evidence Nos. 64-1, Eul evidence Nos. 8, 9, 40-12, and 13-12, and 13, the defendant uses and profits from the lease, etc. of the real estate listed in attached Table No. 6 List No. 11, and the profits from the use and profits from the lease of the real estate from the real estate to 7.7 million won per month is recognized. Meanwhile, the above real estate is the real estate bequeathed from the deceased to the defendant, and the defendant must return the above real estate to the plaintiff with the return of the legal reserve of inheritance.

Therefore, the Defendant, upon the Plaintiff’s request, unjustly gains 23,677,100 won (=7,7300,000 won x 49 months) equivalent to the portion to be returned to the Plaintiff out of the amount of KRW 23,677,100,00 (i.e., KRW 377,730,000 x 912,533,325,441,426,750), which is equivalent to the portion to be returned to the Plaintiff. Accordingly, the Defendant is obligated to pay to the Plaintiff damages for delay calculated from December 8, 2009, the day following the day on which a copy of the written request for change of the purport of the claim was served on December 2, 2009 to December 2, 2009, to April 30, 2010, the Defendant is obliged to pay the Plaintiff damages for delay calculated annually from the day following the date of the judgment to December 25, 2010.

4. As to the defense and the counterclaim

A. As to the assertion regarding the amount of indemnity and amount of takeover

(1) The defendant's assertion

(A) ① The Defendant and Nonparty 3 paid KRW 1,922,564,650 of inheritance tax and additional dues imposed on Nonparty 2 as a joint obligor. However, the Plaintiff also constitutes a joint obligor jointly and severally liable to pay the above inheritance tax with Defendant and Nonparty 3. The Plaintiff is obligated to claim the Plaintiff’s share of KRW 640,854,883 (= KRW 1,922,564,650 x 1/3) and damages for delay. ② The Defendant and Nonparty 3 paid KRW 195,761,510 of global income tax and value-added tax imposed on the Deceased. Of the above payments, the Plaintiff’s share of KRW 2/9 of the above payment is KRW 43,502,577 (= 195,761,510 x 2,510 x 2/90) and KRW 360 and KRW 298 of the inheritance tax and the Plaintiff’s damages for delay.

(B) However, Nonparty 3 transferred “the claim for reimbursement against the Plaintiff” to the Defendant and notified the Defendant of the assignment of the said claim.

(C) Therefore, the plaintiff has the obligation to pay the above amount of reimbursement to the defendant, and the defendant has the obligation to pay the above amount of reimbursement with the above amount of reimbursement claim as a defense against the plaintiff's claim and as a counterclaim.

(2) Determination:

(A) As to the assertion regarding the amount of reimbursement against Nonparty 3

According to the evidence Nos. 79 and 80, on January 21, 2010, Nonparty 3 received total of KRW 485 million from Nonparty 3, and it is reasonable to deem that Nonparty 3 renounced all rights related to the return of legal reserve against the Plaintiff on January 21, 2010, and notified the Plaintiff on the same day. However, it is recognized that the Plaintiff notified the Plaintiff of the above transfer on the same day. However, as the agreement was reached between Nonparty 3 and the Plaintiff on October 16, 2007 and December 28, 2009, the fact that Nonparty 3 received total of KRW 485 million from the Plaintiff and Nonparty 3 on the legal reserve of inheritance, and that Nonparty 3 did not waive all rights related to the return of legal reserve of inheritance tax against the Plaintiff with the above written agreement and agreement, even if Nonparty 3 did not have rights related to the inheritance tax and additional tax, it is reasonable to deem that the Plaintiff did not claim for reimbursement against the Plaintiff.

(B) As to the Defendant’s assertion regarding the amount of reimbursement

(3) Under the overall purport of the pleadings, Gap evidence 61, Eul evidence 73-1 to 6, Eul evidence 74-76, the tax authority imposed 1,719,936,172 won on non-party 2, and the defendant was jointly liable for tax payment on 1,719,936,172 won and additional 202,62,564,650 won among the total amount of 1,92,564,650 won which was 92,9750 won which was 250 won which was 1,750 won which was 1,71,719,9750 won which was 250 won which was paid to non-party 2,500 won which was 1,62,564,650 won which was 965 won which was 1,500 won which was 250 won which was paid by the tax authority to non-party 2,504,7198

Comprehensively taking account of Article 3(3) of the Inheritance Tax and Gift Tax Act, Article 25-2 of the Framework Act on National Taxes, Articles 424 and 425 of the Civil Act, co-inheritors are jointly and severally liable to pay the inheritance tax to one of the co-inheritors within the extent of the inherited or inherited property. In a case where co-inheritors jointly and severally liable to pay inheritance tax or extinguish their joint and several liability, they may exercise the right to demand reimbursement for the portion of other co-inheritors’s share. It is reasonable to view that the co-inheritors jointly and severally liable to pay the inheritance tax to Nonparty 2 among the total inherited property, unless there are special circumstances. According to the aforementioned facts recognized as above, the Plaintiff is jointly and severally liable to pay the inheritance tax to the Defendant, etc. for the amount equivalent to 922,564,650 won, the Defendant was refunded KRW 102,873,647 won, but actually 819,030 won, 92,6467/197).

Meanwhile, 195,761,510 won, global income tax and value-added tax are inherited by inheritance shares to the Plaintiff, the Defendant, etc., and at the same time, the Plaintiff and the Defendant, etc. are jointly and severally liable for tax payment. Since the Defendant paid KRW 95,761,510 among them, the Plaintiff is obligated to pay to the Defendant the damages for delay calculated at the rate of 21,280,335 won corresponding to 2/9 of its share ratio (i.e., KRW 95,761,510 x 2/9) and the damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from April 30, 2007, which is the date the Defendant paid for the existence and scope of the obligation from April 30, 207.

In addition, the Plaintiff is obligated to claim for reimbursement of KRW 21,217,430 against the Plaintiff, who paid the Plaintiff with a tax refund up to March 3, 2009, by the Defendant.

B. As to the assertion regarding damages on the ground of unfair provisional execution

(1) The defendant's assertion

(A) The Plaintiff applied for a compulsory auction on the Defendant’s property according to the provisional execution of the judgment of the first instance court of this case (Seoul Eastern District Court 2009Ma3740). The Defendant deposited KRW 200 million with the security deposit on June 11, 2009 (Seoul Central District Court 2009 No. 102111) in order to suspend a compulsory auction on the said real property (Seoul East Eastern District Court 2009).

In addition, the plaintiff accepted the decision of seizure and collection of the claim against the defendant to the head of Seoul Dong District Court (Seoul East District Court 2009Tari 8850, 2009Tari 9593, 2009Tari 9593, 200 million won to be refunded to the defendant) on August 31, 2009 (Seoul East East District Court 2009 Geum 4689, 2009).

(B) However, if the judgment of the first instance court of this case is revoked, the plaintiff's provisional execution is improper.

(C) Therefore, when the judgment of the first instance court of this case is revoked, the Plaintiff is liable to pay 600,050,000 won per annum from June 11, 2009 to the refund of the above 200,000 million won (=200,000 won per annum from June 11, 2009 to the above 200 million won (=50 million won per annum under the Civil Act - 2% per annum under the Deposit Act). The Defendant is liable to pay 350,000,000 won deposited by the Seoul East Eastern District Court of 2009 to the above 350,000,000 won per annum from August 31, 2009 to the advance payment of the above 350,000 won (=350,000 won per annum under the Civil Act - 5% per annum under the deposit Act) at the same time, and the Defendant is also liable to pay the damages as the counterclaim.

(2) Determination:

The plaintiff's application for compulsory auction and application for seizure and collection of claims based on the provisional execution of the judgment of the first instance court of this case is difficult to be recognized in light of the above facts and macroscopic evidence. The defendant's above assertion is without merit without examining it.

C. As to the assertion regarding damages on the ground of obstructing the exercise of redevelopment claim

(1) The defendant's assertion

(A) While the Plaintiff was well aware of the fact that the claim listed in the attached Table 2 List 2 was bequeathed to the Defendant, the Plaintiff had the redevelopment association deposit the claim for the settlement money amounting to KRW 591,956,347 around September 28, 2006 due to the Defendant’s failure to give rise to “the consent of provisional cancellation of attachment” necessary to exercise the above claim.

(B) The Plaintiff’s act of obstructing the receipt of the Defendant’s claim for liquidation money, and also causing the Defendant to deposit the claim for liquidation money with the Defendant without delay constitutes a tort.

(C) Therefore, during the period between September 28, 2006 and October 22, 2009, the Plaintiff has a duty to compensate the Defendant for damages equivalent to 5,492,419 won (i.e., KRW 5,956,347 x 0.03 x 1,120 days), which is the difference between the annual interest rate of 2% under the Deposit Act and the annual interest rate of 5,492,419 won (i.e., KRW 591,956,347 x 0.03 x 1,20 days). The Defendant raised the claim against the Plaintiff with the above claim amount

(2) Determination:

Therefore, it is difficult to recognize the Plaintiff’s failure to “the consent of provisional seizure” despite the Defendant’s request constitutes a tort, or further, whether the Defendant committed an illegal act to prevent the Defendant from receiving the claim for liquidation money, in light of the foregoing facts and macroscopic evidence. The Defendant’s assertion also has no reason without examining it.

5. Offset, etc.

The defendant bears the obligation to pay money as f. (2) and (g) (2) of the above 3-A-B to the plaintiff, and the plaintiff bears the obligation to pay money as f.o. as f. in the above 4-A-2 (b) to the defendant.

However, the defendant has expressed his/her intent to offset his/her monetary claims against the defendant with his/her monetary claims (the defendant's preparatory documents, etc. dated April 2, 2009). The above two claims shall be offset against an equal amount at the time of offset, and the detailed set-off details are as shown in the attached Table 7.

As a result of the offset appropriation, the defendant bears the obligation to pay the remainder of 563,048,746 won and damages for delay calculated at the rate of 5% per annum under the Civil Act from March 27, 2010 to April 23, 2010, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

6. As to the defendant's application for return of provisional payment

The Defendant asserts to the effect that “The Plaintiff paid KRW 198,814,048 (the amount increased by KRW 1.6 million compared to the purport of the claim for provisional payment) to the Plaintiff in accordance with the judgment of the first instance court of this case, the Plaintiff shall return the remainder of the provisional payment exceeding the amount duly recognized.”

According to the facts without dispute, Eul evidence No. 84, and the purport of the whole pleadings, it is acknowledged that the plaintiff received KRW 198,814,048 from March 15, 2010 upon the provisional execution order of the judgment of the first instance court of this case. However, the plaintiff must return the amount to the defendant only if there is any part exceeding the amount cited in the trial. It is obvious in calculating that the amount to be paid by the defendant to the plaintiff exceeds the amount of the above provisional payment amount of KRW 563,048,746, even if the principal amount is paid to the plaintiff. Thus, the defendant's request for return of provisional payment is without merit.

7. Conclusion

Therefore, the defendant shall perform the above 3-F (1) obligation and the above 3-5 obligation to the plaintiff. Thus, the plaintiff's main claim in the plaintiff's main claim in this case is dismissed as it is without merit, and the plaintiff's main claim in this case shall be accepted only within the extent of the above recognition, and the remainder shall be dismissed as it is without merit. The defendant's main claim in this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair as to the main claim in part, the judgment of the court of first instance shall be modified as above, and the defendant's main claim and the return of the provisional payment shall be dismissed. It is so decided as per Disposition.

[Attachment]

Judge crude oil (Presiding Judge)