Whether the executor of a will is a party in a lawsuit related to testamentary gift (affirmative) and the purport of Article 1103(1) of the Civil Act

Since an executor has the right and duty to manage property which is the object of testamentary gift, and to perform all other acts necessary for the execution of a will, in a lawsuit seeking cancellation of other registrations which obstruct the execution of a will, the executor of the will has standing to sue as a legal action. The executor of the will shall perform his duties in a neutral position on matters that conflict with the inheritor within the necessary scope for the execution of his will. If there is an executor of the will, the executor of the will shall be restricted the right to dispose of inherited property of the inheritor to the extent necessary for his will, and there is no standing to sue. Article 1103(1) of the Civil Act provides that "the executor of the will by designation or appointment shall be deemed the agent of the inheritor," but this provision provides that the effect of the executor's act belongs to the inheritor, separate from the right to perform the lawsuit of the executor, does not always provide that the executor's right to perform the lawsuit of the inheritor

Articles 1101, 1103(1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other (Law Firm Busan Dongdong, Attorneys Kim Sun-ok et al., Counsel for the plaintiff-appellant)

Defendant

Busan High Court Decision 99Na10011 delivered on April 7, 2000

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. We examine the first ground for appeal.

Since the executor has the right and duty to manage the property which is the object of testamentary gift, and to perform all other acts necessary for carrying out his will (Article 1101 of the Civil Act). In a lawsuit seeking cancellation of another registration which has been completed with respect to the subject of testamentary gift, the executor shall have standing to sue as a legal lawsuit (see Supreme Court Decision 97Da57733, Nov. 26, 199). The executor of the will shall perform neutral duties with respect to matters contrary to his/her will within the extent necessary for carrying out his/her will, and if there exists an executor, the executor shall have the right to dispose of the inherited property of the inheritor to the extent necessary for his/her will, and shall not have standing to sue within the extent of such restriction. Article 1103(1) of the Civil Act provides that "Where there exists an executor, the executor designated or appointed shall be deemed the inheritor's agent." However, this provision does not always provide that the executor's act should belong to his/her heir, and that the executor's right to perform the lawsuit should always always exist.

In light of the above legal principles, in this case where the deceased non-party 1 bequeathed the real estate in this case to a person other than the plaintiffs, and the executor was designated for the execution of his will, the court below is just in holding that since the lawsuit of this case seeking the cancellation of the registration of transfer of ownership in the name of the defendant, which was completed on the ground that the registration of inheritance was completed by the title successor with respect to the real estate in this case, is within the scope of the executor's duty, the standing to sue in this case is only against the executor, and it is not against the plaintiffs alleged as the deceased non-party 1's heir, and it is not erroneous in the misapprehension of legal principles as to Article 1101 or Article 1103 (1) of the Civil Act, contrary to the allegations in the grounds of appeal

2. We examine the second ground for appeal.

According to the decision of the court below, the contents of the will made on November 30, 1982 by the deceased non-party 1 (the deceased non-party 1) were as follows: ① 9 lots of land and 3 lots of buildings indicated in the land cadastre and building register attached to the will shall be bequeathed to the non-party 2; ② the non-party 2 shall request the deceased non-party 1 to manage well the graveyards of their spouses after the death; ③ the non-party 1's remaining property excluding the above testamentary property shall be used for the land project in accordance with the intention of ordinary litigation; ④ the contents of the will shall be designated as the executor; however, the deceased non-party 1 acquired the ownership of the real property of this case on September 30, 198, after the will was prepared; although the real property of this case was acquired after the will, even though it was not established at the time of the will, it cannot be viewed that the part of the testamentary property of this case can not be viewed as being included in the testamentary gift of this case.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)