(영문) 서울고등법원 2018.9.7. 선고 2018나2005889 판결

The judgment of the first instance is revoked. The judgment of the plaintiff is revoked. ① As to the share of 1/32 out of the real estate listed in paragraphs (1) through (13) of the attached Table 1, the share of 1/48 out of the real estate listed in paragraphs (14) through (17), and the share of 3/160 out of the real estate listed in paragraphs (18), the defendant C shall pay the share of 1/32 out of the real estate listed in the attached Table 1, 1/48 out of the real estate listed in paragraphs (1) through (14) through (16) of the attached Table 1, and the defendant D shall pay the share of 1/48 out of the real estate listed in paragraphs (14) through (16) of the attached Table 1, the share of 1/16 out of the real estate listed in paragraphs (14) through (19) to return the legal reserve of inheritance on the date of service of the complaint of this case. ② The defendant B, C, and D shall pay the share of this case to the next 15%.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court's explanation on the instant case is as follows: (a) the first instance court's "1.926m2" under the fifth part of the first instance court's judgment is "1,926m2"; (b) the third part's "P" is " Q"; and (c) the plaintiff added the following judgments on the grounds for appeal that the plaintiff emphasizes or newly added to the first part's " Q", and thus, it is identical to that of the first instance court's judgment. Thus, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure

2. Determination on the grounds for appeal

A. The plaintiff asserts that the general principles of private international law of the United States and the provisions of the New York law of the United States shall be the law of the country where the property is located, since the provisions of the State Law of the State Law of the Republic of Korea and the provisions of the New York law of the United States shall be the law of the country where the property is located, with respect to the claim for inheritance, the governing law of this case shall be the Civil Code of the Republic of Korea pursuant to Article 9(1) of the Private International Law of the Republic of Korea. However, the above provisions are about the disposal of real estate by will, and there is no possibility that the deceased shall be applied in this case where the property was donated before the birth.

B. The plaintiff asserts that the legal reserve of inheritance under the Civil Code of the Republic of Korea is a mandatory provision with the purpose of protecting the bereaved family's right to survival, so even if a foreign law is designated as the governing law, it should be applied pursuant to Article 7 of the Private International Act, and in this case, the New York law that does not recognize the legal reserve of inheritance clearly violates the public order and good morals of the Republic of Korea, and thus, the New York law shall not be applied pursuant to Article 10 of the Private International Act. However, in light of the fact that the legal reserve of inheritance is a property right that can waive the right to claim the legal reserve of inheritance, it cannot be deemed that the legal reserve of inheritance system should be applied regardless of the governing law, and if the law of the deceased's country of nationality does not

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal against this is dismissed in its entirety as it is without merit. It is so decided as per Disposition.