[1] The method of exercising the right to claim the return of legal reserve of inheritance and whether the right to claim the return of legal reserve of inheritance is exercised within the extinctive prescription period under Article 1117 of the Civil Code (affirmative)

[2] In a case where the other party exercises the right to claim the return of legal reserve of inheritance, whether the extinctive prescription against the right to claim the return of legal reserve of inheritance under Article 1117 of the Civil Code applies to the scope of the testamentary gift or gift subject matter to be returned by the other party, and the right to claim

[1] Articles 115 and 1117 of the Civil Act / [2] Articles 1115 and 1117 of the Civil Act

[1] Supreme Court Decision 93Da11715 Decided June 30, 1995 (Gong1995Ha, 2533), Supreme Court Decision 2000Da8878 Decided April 26, 2002 (Gong2002Sang, 1220) / [2] Supreme Court Decision 2010Da42624 Decided March 14, 2013 (Gong2013Sang, 625)

Plaintiff (Law Firm Seocheon General Law Office, Attorneys Transferred-won et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Yang, Attorneys Park Byung-hee et al., Counsel for the defendant-appellant)

Supreme Court Decision 2009Da94643, 94650 Decided March 25, 2010

Jeju District Court Decision 2010Na873, 880 decided June 2, 2011

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Jeju District Court Panel Division.

The grounds of appeal are examined.

1. As to the violation of the rules of evidence

After compiling evidence, the lower court acknowledged the facts as indicated in its reasoning. On March 7, 2008, the lower court determined that, at the time of filing the instant lawsuit against the Defendant, the Plaintiff was aware of the fact that there was a testamentary gift against the Defendant of the deceased Nonparty regarding stone and stone set up on the instant land and stone set up on the instant land, brick and brick fixtures and sloping and sloping roof single-story, and 145.97 square meters in retail stores (hereinafter “instant building”).

Examining the reasoning of the lower judgment in light of the records, the lower court did not err by misapprehending the facts in violation of logical and empirical rules, as otherwise alleged in the ground of appeal.

2. As to the misapprehension of legal principles as to the extinctive prescription of the claim for restitution of legal reserve

A. The right to claim the return of legal reserve of inheritance can be exercised by means of a declaration of intention to the other party in a judicial or extra trial. It is sufficient if the declaration of intention is given by designating the testamentary gift or gift that has been infringed and expressing his/her intention to claim the return thereof. Unlike exercising the right to claim the transfer of the object arising therefrom or the right to claim the transfer of the object, it does not have to specify the subject matter. If the person having the right to legal reserve of inheritance exercises the right to claim the return of legal reserve of inheritance in the above manner, the right can be exercised within the extinctive prescription period stipulated in Article 1117 of the Civil Act (see, e.g., Supreme Court Decisions 93Da11715, Jun. 30, 1995; 200Da878, Apr. 26,

Meanwhile, when a person having the right to the legal reserve of inheritance exercises the right to the legal reserve of inheritance, testamentary gift or gift becomes retroactively null and void, and the other party bears the duty to return the testamentary gift or gift subject to inheritance to the extent that such right becomes null and void (see Supreme Court Decision 2010Da42624, Mar. 14, 2013). Since the right to the legal reserve of inheritance claims are different from the right to the right to the legal reserve of inheritance claims, the extinctive prescription for the right to the right to the legal reserve of inheritance claims under Article 1117 of the Civil Act is not applicable to the right to the right to the legal reserve of inheritance claims, and the period of extinctive prescription should be separately determined depending on the

B. According to the reasoning of the judgment below and the records, the deceased and the deceased deceased on May 14, 2007, and the deceased's deceased non-party on the land and building of this case owned by the deceased non-party on the ground of legacy on June 26, 2007 and May 14, 2007, the ownership transfer registration was completed in the future of the defendant, respectively. The plaintiff designated the deceased non-party on March 7, 2008 as testamentary gift on May 14, 2007 against the deceased non-party on the land of this case. The plaintiff filed the lawsuit of this case against the defendant on May 14, 2007. The copy of the complaint was delivered to the defendant around that time, and the plaintiff filed the application for modification of the purport of this case and the grounds for modification on the part of the plaintiff's share equivalent to the legal reserve of inheritance on August 9, 2010.

Examining the above facts in light of the legal principles as seen earlier, if the Plaintiff, while filing the instant lawsuit against the Defendant on March 7, 2008, designated the deceased Nonparty’s testamentary gift on May 14, 2007 against the Defendant and expressed his/her intent to claim restitution, it can be deemed that the Plaintiff exercised the right to claim restitution of the forced portion within one year from the time of becoming aware of the commencement of inheritance and of the testamentary gift to be returned, even if the Plaintiff did not specifically specify the instant building at the time.

In addition, the extinctive prescription against the claim for the registration of transfer concerning the building of this case arising from the plaintiff's exercise of the above claim for the return of legal reserve of inheritance does not apply to the claim for the return of legal reserve of inheritance under Article 1117 of the Civil Act. Thus, the short-term extinctive prescription of one year under Article 1117 of the Civil Act is not completed on the ground that the plaintiff did not exercise the claim for the registration of transfer within one year from March 7, 2008.

Nevertheless, the lower court determined otherwise, on March 7, 2008, that the Plaintiff filed an application for modification of the purport and cause of the instant claim, which included the content of the Plaintiff’s claim for the registration of transfer of the instant building on August 9, 2010 when one year elapsed since the Plaintiff filed the instant lawsuit with the knowledge of the commencement of inheritance and the act of testamentary gift on March 7, 2008, and accordingly, the right to claim the return of forced portion

In so determining, the court below erred by misapprehending the legal principles as to the claim for the return of legal reserve of inheritance and the extinctive prescription of the claim for the registration of transfer of an object arising from the legal effect of the exercise thereof, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)