Rights of co-inheritors not recorded in the register

Even if some of co-inheritors do not enter in the register as co-inheritors, their rights as co-inheritors may not be denied unless there are any special circumstances.

Article 1006 of the Civil Act

Plaintiff

Defendant 1 and one other Defendants et al., Counsel for the defendant-appellee

Gwangju High Court Decision 76Na493 delivered on September 21, 1977

The original judgment is reversed, and the case is remanded to the Gwangju High Court.

1. According to Gap's evidence Nos. 2 and 3 (the evidence of each subparagraph is cited by the court below), the deceased non-party No. 1 is the deceased non-party No. 2 (the judgment of the court below is indicated as "the non-party No. 2" but it is recognized as a clerical error in the judgment of the court below), and the above non-party No. 1 died on January 9, 1953. The deceased non-party No. 4, non-party No. 5, and the non-party No. 6 was the deceased between the wife No. 3 at the time of death, and the above non-party No. 2 was able to look at the death of December 12, 1969, the above non-party No. 4, non-party No. 5, and the non-party No. 6 inherited the property of the deceased non-party No. 2 on behalf of the above deceased non-party No. 1 in the order of the above deceased non-party No. 1, and the plaintiff No. 1 and the plaintiff No. 2 were sold 98.

If so, even if the record is prepared, the above non-party 4, non-party 5, and non-party 6 can not be seen to have renounced inheritance on the real estate or lost the right as a heir even if there is no special circumstance that the above non-party 4, non-party 6 may lose the right as the co-inheritors of the above non-party, etc. on the ground of only the entry in the register. However, the above non-party, etc. on the real estate cannot be denied the rights of the co-inheritors of this case. However, without making a decision on the assertion of the defendant's legal representative on the inheritance by representation of the non-party, etc. (refer to the receipt of April 27, 1976 stated on the date of the trial of the first instance, and the legal brief of the defendant's legal representative), it is presumed that the co-ownership of the plaintiff and the defendant are presumed to be co-ownership, etc., and there is no illegality that taking the division procedure on the premise of the presumption and taking place.

2. The court, upon the claim for partition of co-owned property, divides in kind in principle the co-owned property, but if the price is not able to divide in kind or is likely to be significantly reduced due to the division, there is no limit such as below, etc., and therefore, there is no reason to summon both parties before the division and not recommend the settlement. Thus, we cannot accept the argument that there is a defect of illegality for which the advance settlement was not recommended.

3. The appeal of this case is with merit on the grounds of the above 1, and therefore, pursuant to Articles 400 and 406 (1) of the Civil Procedure Act, the judgment of the court below is reversed, and the case is remanded to the Gwangju High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Min Jae-chul (Presiding Justice)