Plaintiff 1 and one other (Law Firm LLC, Attorney double-luminous, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Yong-hoon, Counsel for defendant-appellant)

September 14, 2017

Seoul Western District Court Decision 2016Da215106 Decided May 26, 2017

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

3. Article 1 of the judgment of the court of first instance: “The defendant shall correct the plaintiffs to the extent that “the defendant shall implement each procedure for the registration of ownership transfer on the ground of the return of the legal reserve of inheritance with respect to each one-eight percent of the total area of 203 square meters in Yongsan-gu Seoul ( Address 1 omitted) and its ground trees and the general restaurant for extract 34.87

1. Purport of claim

The Defendant shall implement each procedure for the registration of ownership transfer for each of the 1/8 shares of Yongsan-gu Seoul ( Address 1 omitted) and 203 square meters and its ground trees and general restaurants of 34.87 square meters (hereinafter “instant real estate”) with respect to each of the 1/8 shares of Yongsan-gu (hereinafter “instant real estate”).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

1. Basic facts

A. On November 19, 2001, the deceased non-party 1 (the deceased on September 4, 2015, hereinafter “the deceased”) and four children between the deceased non-party 2 (the deceased on July 8, 1950, hereinafter “the deceased”) and the deceased non-party 3. The deceased non-party 3 died on November 19, 201, which was before the deceased’s death. The deceased non-party 4, the deceased non-party 5, the non-party 6, the non-party 7, and the non-party 8.

B. At the time of the deceased’s death on September 4, 2015, the instant real estate exists with the property owned by the deceased, and there is no other active property or small property (no dispute exists between the parties, unless it has been specifically revealed).

C. On May 30, 2013, the Deceased prepared a testamentary gift with the content of testamentary gift to the Defendant (hereinafter “instant testamentary gift”). Accordingly, on October 7, 2015, the deceased’s death, the Defendant completed the registration of ownership transfer for the instant real estate on the ground of testamentary gift on October 7, 2015. Moreover, on October 21, 2015, the registration of ownership transfer was completed on October 29, 2015 with the debtor, Defendant, the mortgagee, the Defendant’s wife, Nonparty 9, and the maximum debt amount of KRW 1 billion, respectively.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 1 to 5, 14 to 19, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiffs' assertion

The Defendant received a legacy from the deceased and completed the registration of transfer of ownership. On the other hand, the Plaintiffs did not have any property donated from the deceased or otherwise inherited. Thus, the Defendant has the duty to return each of the instant real estates (1/8 shares) infringed in kind.

B. Defendant’s assertion

The plaintiffs received the following real estate from the deceased before they were born, and such special profits should be included in the basic property (actual inherited property) for calculating the legal reserve of inheritance. Since the property already donated by the plaintiffs is far more than the Defendant’s legacy, the calculation of the legal reserve of inheritance would not infringe upon the Plaintiffs’ legal reserve of inheritance due to the legacy of this case.

The defendant's assertion (No. 2 omitted) evidence related to the defendant's assertion of the real estate contained in the table located in the main sentence 1,20,24-4,25-1, Eul 72, Yongsan-gu, Seoul ( Address 2 omitted), Gap 25-2, Eul 1, Eul 235, and Eul 24, Yongsan-gu ( Address 3 omitted), Yongsan-gu, Seoul ( Address 3 omitted), 85, Eul 2, Eul 155, and 2, Dong 136, Yongsan-gu, Seoul ( Address 4 omitted), 23, Eul 37, Yongsan-gu, Seoul ( Address 5 omitted), 148, Yongsan-gu, Seoul ( Address 5 omitted), 49,147,275,27, Dong-gu, Seoul ( Address 5 omitted), and 149,147,275,275,27,277, Dong-dong, Yongsan-gu, Seoul).

3. Determination

(a) Basic assets in calculating legal reserve of inheritance;

1) Inherited property

The fact that only the real estate was the active property at the time of the deceased’s death is recognized as above.

2) Determination on the plaintiffs' assertion related to special benefits

A) For each real estate listed in Title 1, 5 or 11:

Where an ancestor has donated property to his/her heir or to a third party before the institution of legal reserve of inheritance, and ownership has been transferred to the donee upon completion of the performance, the inheritance does not require the retroactive property even after the inheritance commenced after the predecessor died after the enforcement of the Civil Act amended by Act No. 3051 on December 31, 197 (hereinafter “amended Civil Act”). This is because, in light of the purport of Paragraph (2) of the Addenda to the amended Civil Act, where the provision of legal reserve of inheritance under the amended Civil Act applies to donations completed before the enforcement of the amended Civil Act, the donee’s vested right is restricted or infringed by retroactive legislation (see Supreme Court Decision 2010Da78722, Dec. 13, 2012). In other words, it is reasonable to view that the statutory reserve of inheritance does not infringe upon the heir’s right to receive statutory reserve of inheritance and the heir’s right to receive statutory reserve of inheritance before the enforcement of the amended Civil Act, as a whole, before calculating the statutory reserve of inheritance of inheritance and the heir’s right to receive statutory reserve of inheritance.

According to Gap evidence Nos. 20, 23, and 24-4, 25-1, Eul evidence Nos. 3 through 7, 13, 14, 18, and 19-1, and Eul evidence Nos. 3 through 7, 13, 18, and 19, with respect to the real estate listed in Table Nos. 1, the registration of transfer of ownership based on sale as of October 21, 1972 was completed on October 21, 1972. The registration of transfer of ownership based on the sale as of October 21, 1972, Nos. 5 and 6 was completed on August 4, 1964 on each of the real estate listed in the table Nos. 7, 8, 10, and 11 for sale as of July 30, 1964; the registration of transfer of ownership of the plaintiff No. 14, May 16, 1960.

According to the above facts of recognition, inasmuch as each real estate listed in the No. 1, No. 5, or No. 11 is completed before January 1, 1979, which was the enforcement date of the amended Civil Act, the registration of ownership transfer was completed in the Plaintiffs’ future before January 1, 1979, and its implementation has already been completed, as alleged by the Defendant, the Plaintiffs may not be included in the property which serves as the basis for calculating the legal reserve of inheritance, without examining whether

B) Each real estate listed in the Title 2, 12 No. 5

The defendant asserts that the plaintiff 1 was donated each of the above real estate by the deceased, because the plaintiff 1 did not have any special occupation or re-existence at the time of acquiring the real estate listed in the No. 2 No. 12, and the plaintiff 2 did not prove the source of the acquisition fund.

First of all, we examine the real estate listed in No. 2 in the register. According to the records, it is recognized that Plaintiff 1 completed registration of preservation of ownership on March 8, 1990 on this real estate (building). Meanwhile, according to the results of fact inquiry and the purport of the entire pleadings by the court of the first instance, Plaintiff 1 appears to have no special occupation at the time of acquiring the real estate listed in No. 2 from the deceased. However, it is insufficient to confirm the fact that Plaintiff 1 received the said real estate from the deceased, and there is no other evidence to acknowledge it (it is not doubtful that Plaintiff 1 received the acquisition fund from a third party even if it is doubtful that Plaintiff 1 received it from the deceased).

According to the records in the register, it is presumed that Plaintiff 2 had completed the registration of ownership transfer on the real estate on April 8, 1989 due to sale and purchase as of April 28, 198, and there is no evidence to recognize the fact that Plaintiff 2 received the said real estate from the “the deceased” as “donation.”

In the end, this part of the defendant's assertion is without merit. Accordingly, each real estate mentioned in the table Nos. 2 and 12 cannot be included in real estate which serves as the basis for calculating legal reserve of inheritance.

C) Each real estate listed in Title 3 and 4:

The defendant asserts that since the plaintiff 1's husband non-party 10 did not have any special occupation or ability at the time when the plaintiff 1 acquired this land and building, and was unable to prove the source of the acquisition fund, it was donated to the deceased. The ownership of each of the above real estate is the non-party 10, but the plaintiff 1, who is the wife, was directly donated, should be considered to have been directly donated, so the real estate in the No. 3 and No. 4 should be reflected in calculating the legal reserve of inheritance.

According to the records in the register, Nonparty 10 completed the registration of ownership transfer on the ground of payment in kind on December 30, 1984 with respect to the above land (No. 3) on February 12, 1992, and completed the registration of ownership transfer on October 29, 1993. Meanwhile, according to the results of fact-finding and the purport of the entire pleadings by the court of the first instance, Nonparty 10 appears to have no occupation except for 1992 years at the time of the acquisition of each of the above real estate. Furthermore, it is insufficient to confirm the fact that Nonparty 10 received each of the above real estate from “the deceased” and there is no other evidence to acknowledge it otherwise. Accordingly, the defendant’s assertion is without merit, and each of the above real estate does not constitute the real estate which is the basis of the calculation.

3) Sub-decisions

In addition, there is no assertion or proof as to other inherited property (including inherited property). Accordingly, only the instant real property constitutes the basis property in calculating legal reserve of inheritance (3).

(b) Ratio of legal reserve of inheritance;

Property of the deceased is inherited by the plaintiffs, the defendant, and the deceased non-party 3's substitute heir (the wife and their children) by law, and thus, they are entitled to statutory inheritance at one-fourth percent of each of them. However, since the deceased's lineal descendants are 1/2 of their statutory inheritance, the ratio of the plaintiffs' legal reserve of inheritance is 1/8, respectively.

C. Violation of legal reserve of inheritance

The deceased transferred all of his/her inherited property to the defendant, and there is no special benefit or net inheritance portion of the plaintiffs. Therefore, the plaintiffs suffered infringement of their respective shares of 1/8 of the real estate in this case.

(d) Method and scope of return of legal reserve of inheritance;

Although our Civil Act recognizes the legal reserve of inheritance and provides for the method of return of legal reserve of inheritance in Articles 1112 through 1118, it does not have any separate provision regarding the method of return of legal reserve of inheritance. However, it is normal to return the legal reserve of inheritance of inheritance or testamentary gift itself. Thus, unless there are special circumstances, if the person having the right to legal reserve of inheritance claims the return of legal reserve of inheritance by the method of return of the original property and such return of the original property is possible, the court shall order the return of the original property by the method requested by the person having the right to legal reserve of inheritance (see Supreme Court Decision 2005Da71949, May 26, 2006, etc.). Meanwhile, in cases where a third party acquired the right of mortgage, superficies, etc. after donation or testamentary gift, the person having the right to legal reserve of inheritance of inheritance of inheritance can claim the return of the original property against the person having the right to legal reserve of inheritance of inheritance of inheritance of 200 won, or 200 won.

After the registration of ownership transfer based on testamentary gift was completed in the name of the defendant with respect to the real estate in this case, the fact that the Gangseo-gu Agricultural Cooperative and the non-party 9 established each right to collateral security. However, since the plaintiffs, who are entitled to legal reserve of inheritance, have sought each ownership transfer as to each of the 1/8 shares of the real estate in this case due to the return of original property while taking risk or disadvantage to them, the defendant is liable to implement each ownership transfer procedure based on the return of legal reserve of inheritance with respect to each of the real estate in this case

4. Conclusion

Therefore, the judgment of the court of first instance is just and reasonable. However, the decision of the court of first instance is to correct the error of the defendant's appeal because it is obvious that "the defendant is the plaintiff's misunderstanding of the entry registration procedure of ownership transfer based on the return of legal reserve of inheritance with respect to the share of 1/8 square meters of 203 square meters and 34.87 square meters of Yongsan-gu Seoul ( Address 1 omitted) and 203 square meters of its ground and jugu general restaurants."

Judges Cho Jong-op (Presiding Judge)

(1) On December 28, 2009, the plaintiffs and the defendant prepared a letter of claim on the distribution of the deceased's properties to 25% each and 50% each except for the taxes imposed on the deceased's properties. The claim on the forced portion of inheritance of this case does not fall short of the contents of the letter of claim (However, the claim on the forced portion of inheritance of this case is not a claim based on the above letter of claim).

(1) This Act shall enter into force on the date one year has elapsed after its promulgation.

(3) The Plaintiffs asserted that the Defendant received a gift from the deceased ( Address 10 omitted) on a large scale of 182 square meters. However, this part of the assertion is merely an assertion about circumstantial facts, and it clearly states the purport that the said real estate should not be included in the underlying property for calculating the legal reserve of inheritance. Therefore, the said donation is not determined.