Plaintiff 1 and three others (Attorney Lee Sung-sung, Counsel for the plaintiff-appellant)

Preferred School (Attorney Jeong-soo et al., Counsel for the defendant-appellant)

October 26, 2005

Daegu District Court Decision 2003Gadan3297 Delivered on April 29, 2005

1.The judgment of the first instance shall be modified as follows:

Of the real estate listed in the attached list 1 through 8, the Defendant shall implement each procedure for the registration of ownership transfer on June 5, 2003 with respect to the share of 2,608,461/156,64,160 among the real estate listed in the attached list 1 through 2,320,654/156,64,160 shares to Plaintiffs 2, 3, and 4, respectively.

2. The costs of the lawsuit are assessed against the Defendant in both the first and second instances.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings as stated in Gap evidence 1, 2, 3-1 to 8, and 4-1 to 5.

A. Nonparty 1 died on January 10, 2003. Nonparty 2’s heir, the wife, the son’s highest degree, the Defendant, the Defendant, the son and female, the son and the son’s highest level, the son and the son, the son and the son, the son and the son, the son and the son, the son and the son and the son, and the son and the son’s son and the son were the son and the son’s son and the son’s son’s son and the son’s son’s son and the son’s son’s son and the son’s son’s son’

B. Before the death, the Deceased owned each real estate listed in the separate sheet (hereinafter “each of the instant real estate”). However, on March 14, 1998, each of the instant real estate listed in the separate sheet Nos. 1 through (5) was donated on March 13, 1998 due to the gift on October 15, 2002, each of the real estate listed in the separate sheet Nos. 6 through (8) was registered for transfer of ownership on October 15, 2002 (hereinafter “attached sheet Nos. 1 through 8”).

C. Meanwhile, at the time of the death of the deceased, there was no other property or obligation other than the real estate listed in the attached Table No. 9, and there was no property donated or bequeathed by the Plaintiffs.

2. The plaintiffs' claim for restitution of legal reserve of inheritance and judgment thereon

A. The plaintiffs' assertion

The plaintiffs asserted that since the deceased's donation of their properties to the defendant infringed the plaintiffs' legal reserve of inheritance, the defendant should implement the procedure for the registration of transfer of ownership according to the ratio of their respective legal reserve of inheritance to the plaintiffs as the return of legal reserve of inheritance of this case.

B. Determination on the claim for restitution of legal reserve

1) Calculation of shortage in legal reserve of inheritance

A) Method of calculating shortage in legal reserve of inheritance

The calculation method of the difference in the reserve of inheritance of the plaintiffs is as follows:

Shortage in legal reserve = [A] amount of property on the basis of calculation of legal reserve of inheritance 】 (B) rate of legal reserve of inheritance of the person entitled to legal reserve of inheritance - Special proceeds (C) of the person entitled to legal reserve of inheritance - The net amount of inheritance of the person entitled to legal reserve of inheritance (D).

A = active inherited property + Amount of donation - Amount of inheritance obligation

B = For lineal descendants of an inheritee, one-half of the inheritance stipulated by law.

C = Amount of increase in inheritance of the person entitled to legal reserve of inheritance + amount of inflowal reserve of inheritance

D = The amount of property acquired by inheritance of the person with the right to the legal reserve of inheritance - The amount of inheritance debts contributions.

B) The amount of property (A) that forms the basis for calculating the legal reserve of inheritance

(1) Legal reserve of inheritance shall be calculated on the basis of the amount calculated by adding the value of donated property at the time of the commencement of inheritance of the inheritee and deducting the amount of inherited property. When one of the co-inheritors receives a donation from the inheritee, the application of Article 1114 of the Civil Act is excluded in light of the purport of Article 1008 of the Civil Act, and the donation shall be included in the basic property for calculating legal reserve of inheritance regardless of whether it was conducted for one year before the commencement of inheritance (see Supreme Court Decision 93Da11715 delivered on June 30, 1995). Thus, the real estate of this case shall be included in the basic property for calculating legal reserve of inheritance of this case.

(2) In addition to each of the instant real property, the Defendant claimed that, on around 1981, the upper limit of the deceased, who is the deceased's heir, donated funds for selling 6,371 square meters in size, 169-5 square meters in size, 1424-1, 304 square meters in size, 1424-2, 1424-1, 245 square meters in size, 1425-1, 244 square meters in size, and 825-11 square meters in Yancheon-si, Yancheon-si, Yan-si, and 169-5 square meters in size, such donated funds shall be included in the inherited property, which are the basis for calculating legal reserve, as special profits under the net.

According to the evidence Nos. 1, 2, and 7 of Eul evidence Nos. 3 through 6, each of the above evidence Nos. 1, 2, and 7, 1424-1, 304, 1424-2, 705, 1425-1, 244, 1425-1, 1981, which were the birth of the deceased on June 5, 1981, each of the above shares transfer registration on the ground of sale on February 7, 1972, 825-11, 6, 371 square meters of Sejong-si, and the defendant's assertion that the above shares transfer registration on the ground of sale on February 4, 1980, which was based on the second evidence No. 169-5, 1985, 1965, 1965, 196, 1965, 1985, 196.

(3) mountain.

Therefore, the value of the pertinent property, which serves as the basis for calculating the legal reserve of inheritance, shall be the sum of the value of the real estate in Paragraph 9 of the attached list, which is the inherited property, and that of the value of each of the instant real estate, namely, the value of each of the instant real estate, which is the aggregate of the value of each of the instant donated property. According to the market value appraisal result of the appraiser's transfer, the value of each of the instant real estate around January 10, 203, which is the time of the death of the deceased, is the same as the value of each of the instant real estate in the annexed list

C) The plaintiffs' amount of legal reserve of inheritance and shortage of legal reserve of inheritance = (A x (B)-C-D)

(1) As the deceased’s death succeeded to 3/15 of his/her property to 2/15 of 3/15 of 3/15 of 15 of 2/15 of 2/15 of 2/15 of 3/9 of 3/9 of 15 of 2/15 of 2/15 of 2/15 of 3/9 of 2/9 of 2/9 of 3/135 of 3/135 of 3/15 of 3/15 of 3/15 of 3/9 of 3/15 of 3/15 of 3/135 of 3/15 of 3/15 of 3/15 of 15 of 2/15 of 1 of 2/15 of 1 of 2/15 of 3,480,98 of 15 of 2/164,160 of 13/135 of 2,465 of 200

(2) On the other hand, the plaintiff 1 acquired ownership of the 2/15 portion of the real estate listed in paragraph (9) of the attached Table among each of the real estate of this case, which is inherited property, through the adjudication on the case of division of inherited property around June 10, 2004, by transmitting family support expenses to the Daegu District Court, Daegu District Court around 2004, 2004, and then the plaintiff 1 acquired ownership of the 2/15 share of the real estate listed in paragraph (9) of the attached Table. Accordingly, the shortage in the legal reserve of the plaintiff 1 would be 2,608,461 won (the value of the real estate of the above 6,543,90 won x 2/15), which is the value of the share of the real estate acquired through the above division, after deducting the above 3,482,520 won

2) Scope of return of legal reserve of inheritance

Therefore, with respect to the share of 2,608,461/156,64,160 of the gift of this case among the gift of this case, the defendant is obligated to implement each procedure for the transfer of ownership on June 5, 2003 with respect to the share of 2,320,654/156,64,160 among the gift of this case to plaintiffs 1, 2,320, 3, and 4, respectively, for the share of 2,608,46,64,160.

3. Conclusion

Therefore, each claim of the plaintiffs in this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the appeal of the plaintiffs is accepted and the judgment of the court of first instance is modified as above. It is so decided as per Disposition.

[Attachment Omission of List of Real Estate]

Judges Lee Ho-su (Presiding Judge)