2016Dives 20054 Division of Inherited Property

2017Dive 20004 (Appeal) An appeal against the contributory portion, etc.

A (1965 Students)

Address

1. B (Life in 1957);

Address

2. C (Life in 1959)

Address

Reference domicile

1. D (Law No. 1963)

Address

Reference domicile

2. E (Lifelong in 1968)

Address

3. F (Lifelong, 1971).

Address

Network A

Final Address

Reference domicile

Mar. 22, 2017

1. The other party (appellant)'s claim on the contributory portion is dismissed.

2. The claimant (the other party to the appeal), the other party (the other party to the appeal) and the other party (the appellant) shall divide the inherited property of the case principal Gap into the following categories:

A. Of the deposit claims listed in the separate sheet, the deposit claims listed in No. 1, 2, and 4 (total of KRW 60 million) are jointly owned by the claimant (other party to a trial), the other party (other party to a trial), and the other party (party to a trial) at the ratio of 1/4 shares, respectively.

B. Of the deposit claims listed in the separate sheet, the deposit claims listed in 3, 5, and 6 (total 13,013, 932 won) are owned by the other party E alone.

(c) The other party (party) D shall pay each one million won to the claimant (party to the counter-Appellant), the other party (party to the counter-Appellant), and the other party (party to the counter-Appellant), and 3.5 million won to E, respectively.

3. The cost of a trial shall be borne by each person.

1. This adjudication (in full view of the purport and cause of the request in a written request for conciliation, referring to the following:

A deposit claim (hereinafter referred to as "deposit claim") in the attached list of the decedent Gap (hereinafter referred to as "the decedent")

One deposit claim is divided into 16,105,00 won each.

2. Anti-adjudication;

D For the inherited property of an inheritee, the other party (hereinafter referred to as "the other party")

The contributory portion shall be KRW 25,761,750, KRW 121, 143, and KRW 792, and KRW 52,159,039,039,000 for E’s contributory portion.

Each determination shall be made.

1. The confirmation of the inheritor and statutory inheritance shares;

(a) The date of death of an inheritee: Death on April 14, 2015;

(b) Lineal descendants of the inheritee's family relationship: Other party (the other party to a trial; hereinafter referred to as the "party to a trial") B, C, other party D, claimant (the other party to a trial; hereinafter referred to as the "party to a trial"), other party E, F. An inheritor and statutory share in inheritance;

Claimant and Other Parties: 1/6 shares, respectively.

[Ground of recognition] Class A2, 3, Eul evidence Nos. 10 and the purport of the whole examination

2. Scope of the divided inherited property;

A. The deposit claim of this case owned by the decedent at the time of death of the decedent is inherited property and is subject to division of this case.

B. On April 13, 2014, the day before the death of the inheritee, Nonparty D terminated the deposit under the name of the inheritee and withdrawn KRW 23,90,519. The remainder of KRW 23,350,519,000, excluding KRW 550,000,000,000,000,000,000,000 won was kept in the Busan Bank’s account.

[Ground of Recognition] The absence of dispute and the purport of the entire examination (see, e.g., document attached to the written amendment of August 15, 2016); 3. Claim for determination of the contributory portion by other party D, E, and F

A. Summary of the assertion

1) The other party D supported the decedent’s total amount of KRW 637,080 per month from 10,000 to 22,415,580 per month for 13 years. The decedent’s total of KRW 776,30,55,980, telephone fee of KRW 328,240, property tax of KRW 48,540, and KRW 25,761,750, and KRW 240,000 from 191 to 198; KRW 25,000,000 from 20,000 to 30,000,000,000 won per month; and KRW 25,000,000,000 from 20,000 to 30,000,000,000 won per month; and KRW 1,295,000,00,000.

B. Determination

1) Relevant legal principles

The entitlement to a contributory portion system prescribed in Article 1008-2 of the Civil Act intends to ensure substantial fairness among co-inheritors by considering the calculation of the entitlement to a contributory portion in cases where there is a person among co-inheritors who specially supported the inheritee or specially contributed to the maintenance or increase of the inheritee’s property. In order to recognize the entitlement to a contributory portion, it should be recognized that the co-inheritors specially supported the inheritee or specially contributed to the maintenance or increase of the inheritee’s property as much as it is necessary to adjust the entitlement to a contributory portion for equity among co-inheritors (see Supreme Court Order 2012Switzerland156, 157, Nov. 25,

2) We examine the instant case in light of the legal principles as seen earlier.

According to the evidence evidence Nos. 4 to 14, the circumstance that other parties D, E, and F paid considerable amounts of money or living expenses to the predecessor before the inheritee’s birth is recognized.

그런데, 갑1 내지 3의 기재와 심문 전체의 취지를 종합하여 인정되는 다음과 같은 사정들, 즉 피상속인과 망 박영철은 일정한 직업 없이 일용노동 등으로 어렵게 가계를 유지하며 4명의 딸과 밑으로 2명의 아들을 두었던 점, 5명의 동생을 둔 장녀인 상대방 B는 중학교 졸업 직후 부모님을 도와 공장을 다니며 혼인하기 전까지 집안의 가장노 릇을 하였고, 그 이후에도 피상속인이 사망하기 전까지 피상속인의 인근에 거주하면 피상속인을 자주 찾아뵙고 피상속인의 대소사를 챙겨왔던 점, 두 살 터울 동생인 상대방 C 역시 중학교를 졸업한 이후 3여 년간 모직회사 등에 취직하여 동생들을 돌보고 어려운 가계에 도움을 주었던 점, 망부는 1991년 산업재해를 입고 재해보상금 등으로 6, 000만 원 상당의 돈을 받게 되었는데, 위 돈이 현재 이 사건 예금채권의 자금원천이된 것으로 보이는 점, 청구인은 혼인 이후 부모님의 계시던 주택 중 한 칸을 임차하여 지내면서 병 중에 있던 부친의 간호를 도왔던 점, 막내아들인 상대방 F은 가계의 형편이 조금씩 나아지자 상당 수준의 교육을 받고 대기업에 취업하였던 점, 이 사건의 형제자매들이 피상속인을 생각하는 마음은 그 경중을 따질 수 없어 보이고, 형편이 더 나은 형제자매들이 형편이 어려운 형제자매들과 비교하여 부모님에게 용돈 등 경제적 지원을 조금 더 하였더라도 이를 달리 평가할 것은 아닌 점 등을 종합적으로 고려하여 보면, 앞서 상대방 D, E, F이 피상속인에게 한 부양의 정도가 피상속인을 특별히 부양하였거나 피상속인의 재산 유지 또는 증가에 특별히 기여한 정도에 이르렀다고 보기 어렵고, 달리 이를 인정할 증거가 없다 .

Therefore, the other party D, E, and F’s claim on the contributory portion is without merit.

4. Other party D, E, and F’s assertion and determination of special benefits

A. Summary of the assertion

The other party B received KRW 10 million from the inheritee on June 3, 2014, and the other party C received KRW 40 million from the inheritee on around 1992, and thus, the said money should be calculated as special profits.

B. Determination

1) Relevant legal principles

Article 108 of the Civil Act provides that, in case where there is a person among co-inheritors who received a donation of property or testamentary gift from an inheritee among co-inheritors, if the gift of property or testamentary gift from the inheritee does not reach his/her own share of inheritance, there exists a share of inheritance to the extent of the shortage in property. This purport is to treat the donation of property from the inheritee among co-inheritors as the advance payment of the share of inheritance in order to ensure the fairness among co-inheritors, and to consider it in calculating the specific share of inheritance. Thus, what kind of donation constitutes special profit shall be determined by taking into account the property of the inheritee’s life, income, living standard, home situation, etc., and by taking into account the equity among co-inheritors, it may be deemed that the donation of property from the deceased to the deceased to the next inheritor is a part of his/her share of inherited property (see Supreme Court Decision 97Meu513, Dec. 8, 198, etc.).

According to the overall purport of the examination, it is recognized that the decedent was diagnosed as a 00 university hospital and was diagnosed as a malkite, residing in the vicinity, and was given KRW 10,000 to the other party B, who was living in the vicinity, for expenses incurred in relation to nursing expenses, hospital expenses, etc. In full view of the size of the decedent’s property, the timing and timing of payment, relationship with the other party, and circumstances after the payment, etc., it is difficult to view that the decedent’s payment to the other party B was made in trust of her woman B, and it is difficult to view that the decedent’s payment was made in advance for her hospital expenses, nursing expenses, etc., and there is no other evidence to support that the said payment constitutes the pre-paid share of inheritance of the other party B.

In addition, it is not sufficient to recognize that the entry of Eul evidence No. 3 has donated 40 million won to the other party C around 1992, and there is no other evidence to acknowledge it (as to this, there is no other evidence to acknowledge it).

The other party C is disputing that the husband borrowed KRW 8 million from the inheritee without any change, and the principal of the loan, the time of loan, and the circumstances for which a considerable period of time has elapsed thereafter, etc. are difficult to use it as the special benefits of the other party C.

5. Method of partition.

A. The deposit claim of this case

The other party D, E, and F’s assertion of the contributory portion and the special benefit claim against the other party B, and C are all rejected on the grounds as seen earlier, and the other party D currently keeps KRW 23,350,519 among the instant deposit claims (50,000,000,000 won paid by the other party is deducted from inherited property) and the instant deposit claim is kept separately in several passbooks. In full view of the following, it is reasonable to divide the instant deposit claim into the amount equivalent to the legal share of inheritance by the inheritor, but it is reasonable to pay to the other inheritor the amount held in excess of the value of his share of inheritance.

B. Of the instant deposit claims, the deposit claims (total of KRW 60,000) Nos. 1, 2, and 4 are owned by the claimant, counterpart B, C, and F respectively.

C. Of the instant deposit claims, the deposit claims (total amount of KRW 13,013,932) stated in 3,5, and 6 shall be owned by the other party E alone.

(c) The other party D shall pay each one million won to the claimant, the other party B, C, and F, and 3.50 million won to E, respectively.

6. Conclusion

Thus, the above determination shall be made as to the claim for division of the inherited property of this case, and the judgment shall be made as per Disposition.

Judges of the presiding judge;

Judges already appointed

Judges Lee Jae-chul