〈Case concerning the lawfulness of a counterclaim made at the appeal stage of a Category Ma family non-contentious case and the method of calculating specific shares of inheritance〉

【Holding】

[1] The circumstances in which a counterclaim may be made in a Category Ma family non-contentious case at the appeal stage

[2] Whether a divisible claim may be subject to division of inherited property (negative in principle) / Whether a divisible claim may exceptionally be subject to division of inherited property where an unjust result would arise that undermines fairness among co-heirs (affirmative)

[3] The meaning of the specific share of inheritance and the reference time for its calculation (= the time of commencement of inheritance)

[4] Whether co-heirs are jointly and severally liable to pay property tax imposed on the inherited property while they co-own the inherited property according to their respective statutory shares of inheritance (affirmative), and where one of them obtains joint discharge by paying the property tax, whether that co-heir may seek reimbursement from the other co-heirs according to their respective statutory shares of inheritance (affirmative in principle) / Where, in a division of inherited property proceeding conducted without reimbursement having been sought, the property tax paid was not taken into account, whether the co-heir may still seek reimbursement from the other co-heirs even if the division of inherited property resulted in the inherited property becoming the sole property of the co-heir who paid the property tax (affirmative)

【Summary of Order】

[1] Under Article 2(1)2(b)10) of the Family Litigation Act, a claim for division of inherited property (Article 1013(2) of the Civil Act) belongs to Category Ma family non-contentious cases, and the respondent may, until the conclusion of the first-instance proceedings, make a counterclaim seeking payment of money, delivery of things, or performance of other property obligations, as a Category Ma family non-contentious case related to the claimant's claim (Article 92 of the Family Litigation Rules). Meanwhile, by analogy to Article 412 of the Civil Procedure Act, a counterclaim in a Category Ma family non-contentious case may also be made at the appeal stage where there is no concern of prejudicing the counterclaim respondent's interest in the instance, or where the counterclaim respondent consents or is deemed to have consented by responding to the hearing on the counterclaim without objection.

[2] Where a claim whose subject matter of performance is divisible, such as a monetary claim, is jointly inherited, it is, as a matter of course, divided and vested in the co-heirs according to their statutory shares of inheritance simultaneously with the commencement of inheritance, and therefore, in principle, cannot be subject to division of inherited property. However, where there are special circumstances in which uniformly excluding divisible claims from the subject of division of inherited property would produce an unjust result that undermines fairness among co-heirs, it is necessary to achieve equity among co-heirs through the division of inherited property, and thus a divisible claim may exceptionally be subject to division of inherited property.

[3] The specific share of inheritance refers to each heir's portion of the inherited property subject to division, being the statutory share of inheritance as adjusted by taking into account the property received by gift by some of the co-heirs and their contributory portions, and it is determined as of the time of commencement of inheritance.

[4] Article 1015 of the Civil Act provides that "the division of inherited property takes effect retroactively to the time of commencement of inheritance. However, it may not prejudice the rights of third parties," thereby recognizing the retroactive effect of the division of inherited property; however, even if retroactive effect is recognized for the division of inherited property, the very fact that the co-heirs were in a relationship of co-ownership of the inherited property after the commencement of inheritance is not retroactively extinguished.

Therefore, co-heirs are jointly and severally liable to pay property tax imposed on the inherited property while they co-own the inherited property according to their respective statutory shares of inheritance (Article 107 of the Local Tax Act; Article 44 of the Framework Act on Local Taxes), and if one of them obtains joint discharge by paying the property tax, that co-heir may, unless there are special circumstances, seek reimbursement from the other co-heirs according to their respective statutory shares of inheritance. Further, where a division of inherited property proceeding is conducted without reimbursement having been sought, the property tax so paid may be taken into account in that proceeding; but if it was not taken into account, the co-heir may still seek reimbursement from the other co-heirs even if the division of inherited property resulted in the inherited property becoming the sole property of the co-heir who paid the property tax.

【Referenced Statutes】

[1] Article 1013(2) of the Civil Act; Article 2(1)2(b) of the Family Litigation Act; Article 92 of the Family Litigation Rules; Article 412 of the Civil Procedure Act [2] Article 1013 of the Civil Act [3] Articles 1008, 1008-2, and 1009 of the Civil Act [4] Articles 425, 1006, 1007, and 1015 of the Civil Act; Article 107 of the Local Tax Act; Article 44 of the Framework Act on Local Taxes

【Referenced Precedents】

[2] Supreme Court Order 2014Seu122, May 4, 2016 (Gong2016Ha, 874)
[3] Supreme Court Decision 2015Da27132, 27149, August 30, 2018 (Gong2018Ha, 1901)
[4] Supreme Court Decision 2020Du34841, July 9, 2020
Supreme Court Decision 2023Da318857, August 1, 2024 (Gong2024Ha, 1561)

(Source: Supreme Court Order 2024Seu866, 867, 868, March 24, 2025 | Judicial Information Disclosure Portal, Precedents)