(영문) 대법원 2016.6.9.선고 2015다239591 판결

The part of the lower judgment against the Plaintiff and B is reversed, and the Defendant’s appeal against the Plaintiff B is dismissed. The appeal against the Plaintiff is dismissed.

The costs of appeal between the Plaintiff A and the Defendant are assessed against the Defendant. The total costs of appeal between the Plaintiff B and the Defendant are assessed against the Plaintiff B, and the remainder.

Reasons

1. The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the grounds of appeal Nos. 1 and 2

The lower court determined that, other than donated property of the Plaintiffs as recognized by the lower court, it was difficult for the Plaintiffs to view that the property owned by the Defendant was donated to D, and that the amount indicated in the receipt for gift tax imposed on the Defendant, which was kept in custody by D, and ① the amount transferred each month from June 11, 2007 to October 10, 2012, to the Defendant’s account under the name of the Defendant or the Defendant’s wife’s name.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment below is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no violation of the rules of evidence, violation of the rules of evidence,

B. Ground of appeal No. 3

(1) The court below rejected all the defendant's assertion that since the plaintiffs agreed on the division of inherited property with all inheritors including the defendant and co-inheritors to inherit part of inherited property independently, the plaintiffs renounced their right to claim the return of forced inheritance portion against the defendant (hereinafter "claim") or increased the plaintiffs' forced inheritance portion as much as the part corresponding to the value of the inherited property they agreed to inherit independently, so the plaintiffs cannot claim the return of forced inheritance portion corresponding to them against the defendant (hereinafter "claim ②").

(2) First, we examine the part concerning the argument in the ground of appeal No. 1.

The court below rejected the defendant's assertion on the following grounds: (a) the co-inheritors may divide the inherited property at any time through consultation (Article 1013 of the Civil Act); and (b) the calculation of the property that forms the basis of calculating the legal reserve of inheritance shall take into account not only the net property of the inheritee at the time of the commencement of the inheritance, but also the donated property at the time of the commencement of the inheritance; and (c) even if D's inheritors agreed on the division of inherited property or the plaintiffs did not claim the legal reserve

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the agreement on division of inherited property and legal reserve

(3) Next, we examine the part concerning the allegation ② in the grounds of appeal.

The grounds of appeal are as follows: (a) the statement in the petition of appeal or the independent statement of the grounds of appeal cannot be invoked; and (b) the court of final appeal may investigate and determine only to the extent of filing an appeal based on the grounds of final appeal. Therefore, the grounds of final appeal need to specify the grounds of final appeal as to which part of the judgment below is in violation of the statutes (see, e.g., Supreme Court Decisions 91Da2278, Oct. 11, 1991; 2008Da40847, Nov. 27, 2008).

In relation to this part of the grounds of appeal, the defendant stated in the appellate brief that "the agreed amount of inherited property division shall be reflected in the calculation of the amount of the forced inheritance due to the waiver of the plaintiffs' forced inheritance, as well as in the calculation of the plaintiffs' net inheritance amount. The specific calculation method is stated in the reference document submitted by the defendant as of September 11, 2015 at the appellate court of this case. Thus, the court below's failure to reflect the agreed amount of inherited property division in the calculation of the plaintiffs' claim amount of the forced inheritance against the defendant is erroneous in the misapprehension of legal principles as to the agreement on division of inherited property and the forced

The statement in the appellate brief is merely invoked the contents of other written statements, and it is difficult to find out how to reflect the agreement on the division of inherited property asserted by the defendant in any manner, and in any respect, whether or not the original judgment is not reflected in the agreement on the division of inherited property. This does not indicate specific and explicit grounds on what part of the original judgment is in violation of the law, and thus, it cannot be deemed as legitimate grounds for appeal. 2. The decision of the court below on the part of Plaintiff B is ex officio

The following facts can be revealed. The first instance court calculated the shortage of legal reserve to be returned to the plaintiff B by the defendant at KRW 4,658,093,029. The first instance court calculated the defendant's 2's share of KRW 30,00,000, KRW 110,000, KRW 368,000, KRW 36,00,000, KRW 46,00,000, KRW 36,00,000, KRW 36,00,000, KRW 46,00,000, KRW 7,000, KRW 5,000, KRW 46,00,00, KRW 36,00,00, KRW 46,0,000, KRW 36,06,06, and KRW 46,06,06,06, and KRW 386,06,06,05,06,06,0,0.

Ultimately, in the instant case where only the Defendant appealed against the judgment of the first instance, the lower court recognized the shortage in legal reserve to be returned to the Plaintiff B, and thereby modified the judgment of the first instance to the Defendant disadvantageously. In so doing, the lower court erred by misapprehending the legal doctrine on the principle of prohibition of disadvantageous alteration, thereby adversely affecting the conclusion of the judgment. The lower court did not err in changing the judgment of the first instance to the Defendant, who is the appellant, to the disadvantage of the Defendant. Therefore, the lower court should have dismissed the

3. Conclusion

Therefore, the part of the judgment of the court below regarding Plaintiff B is reversed. Since this part of the case is sufficient for the Supreme Court to directly judge, the defendant's appeal against Plaintiff B is dismissed. The costs of appeal against Plaintiff A are assessed against the defendant. The costs of appeal between Plaintiff A and the defendant are assessed against the defendant. The total costs of appeal between Plaintiff B and the defendant are assessed against Plaintiff B and the remainder are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.