Open Decision Ledger · Family & inheritance law
Estate division where a share is computed on an asset since disposed of
Supreme Court, July 20, 2022, 2022Seu597 (ruling)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 상속재산분할·기여분결정
Official text on the National Law Information Center
Question
Where property that formed the estate at the opening of succession had since been disposed of, may the court include it when computing each heir's specific share but then exclude it from the division, and how are the meaning and fixing of a specific share bounded by the court's discretion in choosing the method of division?
Holding
A specific share is each heir's portion of the estate to be divided, computed by adjusting the statutory share for gifts and the contribution share, and it is fixed as at the opening of succession. In principle, property that formed the estate at that time but was later disposed of so that it no longer forms the estate cannot be a subject of division. A court may choose the method of division in its discretion, but it may not let a result in which an heir receives less than his specific share. Where the court below included the inheritance tax payment in the estate when computing the shares and then excluded it when dividing, the two stages contradicted each other and left the claimant short of the share it had recognised.
Points at issue, verbatim
상속개시 당시 상속재산을 구성하던 재산이 그 후 처분되어 상속재산을 구성하지 않게 된 경우, 분할의 대상이 될 수 있는지 여부(원칙적 소극)
Unofficial English translation
Where property that constituted the estate at the time of the opening of the succession is thereafter disposed of and ceases to constitute the estate, whether it may be subject to division (in principle, negative)
Disposition
Partly reversed and remanded Stated in the decision
원심결정 중 본심판 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The part of the order of the court below concerning the merits of this case is reversed, and the case in this part is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
구체적 상속분이란 공동상속인 중 일부의 수증재산과 기여분을 참작해 법정상속분을 수정한 것으로서 분할대상 상속재산에 대한 상속인별 몫을 뜻하고, 상속개시시를 기준으로 정해진다
Unofficial English translation
The concrete share of inheritance means the share of each heir in the estate subject to division, as modified from the statutory share of inheritance in consideration of the gifted property and the contribution share of some of the co-heirs, and it is determined based on the time of the opening of the succession
Factors
- 구체적 상속분의 의미 및 그 산정의 기준 시기(=상속개시 시)
- 법원이 상속재산 분할방법을 후견적 재량으로 결정할 수 있는지 여부(적극) 및 그 한계
- 상속개시 당시 상속재산을 구성하던 재산이 그 후 처분되어 상속재산을 구성하지 않게 된 경우, 분할의 대상이 될 수 있는지 여부(원칙적 소극)
Unofficial English translation
• Meaning of the concrete share of inheritance and the time used as the basis for calculating it (= the time of the opening of the succession)
• Whether a court may determine the method of dividing the estate at its guardianship discretion (affirmative) and the limits thereof
• Where property that constituted the estate at the time of the opening of the succession is thereafter disposed of and ceases to constitute the estate, whether it may be subject to division (in principle, negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2018. 8. 30. 선고 2015다27132, 27149 판결 등 참조
Unofficial English translation
See Supreme Court Decision 2015Da27132, 27149 decided August 30, 2018, etc.
Decisions referred to
[1] 대법원 2014. 11. 25. 자 2012스156, 157 결정, 대법원 2018. 8. 30. 선고 2015다27132, 27149 판결(공2018하, 1901) / [2] 대법원 2016. 5. 4. 자 2014스122 결정(공2016하, 874)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Who must ultimately bear the inheritance tax that one co-heir paid out of the deposits of the estate for all the co-heirs?
The remand judgment of the Seoul High Court, once it re-computes the specific shares and the method of division on a consistent basis, will show how the tax payment is treated. An amendment to Articles 1008, 1008-2 or 1013 of the Civil Act would also call for this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The primary reads the court's statements as general requirements on specific shares and division, while the independent reads the holding as applied to how this estate calculation was carried out.
법원이 상속재산 분할방법을 후견적 재량으로 결정할 수 있는지 여부(적극) 및 그 한계Axis 8 (Open question and revisit condition): Primary “Who must ultimately bear the inheritance tax that one co-heir paid out of the deposits of the estate for all the co-heirs?” vs Independent “Under what exceptional circumstances may property disposed of after the opening of succession nevertheless remain subject to estate division?”
The primary asks who must finally bear the inheritance tax one co-heir paid from the estate deposits for everyone, while the independent asks under what exceptional circumstances disposed property can still be divided.
상속개시 당시 상속재산을 구성하던 재산이 그 후 처분되어 상속재산을 구성하지 않게 된 경우, 분할의 대상이 될 수 있는지 여부(원칙적 소극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its ruling of 9 February 2022 (2021Beu2045, 2046), computed the deemed estate at KRW 2,332,774,455, being the real property worth KRW 727,636,000 and deposits of KRW 426,547,390 held at the death, plus special benefits of KRW 1,178,591,065. From each quarter statutory share it deducted the special benefits, leaving specific shares of KRW 549,247,744 (47.5%) for the applicant, KRW 276,281,425 (24%) for Respondent 2 and KRW 328,654,220 (28.5%) for Respondent 3, with none left for Respondent 1. It then divided the real property at those ratios, but excluded from the division the KRW 364,274,720 in inheritance tax that Respondent 1 had paid out of the deposits for all the co-heirs, ordering Respondent 1 to pay the applicant 47.5% of the remaining KRW 62,240,109.
Supreme Court standard: The Supreme Court held that the court below, having excluded the inheritance tax payment from the division, should not have included it in the estate at the earlier stage of computing the specific shares. Including it there meant treating it as a subject of division, and excluding it later contradicted the way the shares had been computed, with the result that the applicant did not receive the property answering to the share already recognised. It found a misapprehension of the law on estate division and reasons that contradicted themselves, reversed the whole part of the ruling on the principal claim, and remitted the case to the Seoul High Court without reaching the remaining grounds of the re-appeal.
Distinguishing conditions
- Property disposed of after the opening of succession is included in the division as is, since the Court said such property can in principle not be a subject of division.
- An inheritance tax payment that is included in the estate at both the share-computation stage and the division stage, so that the two stages do not contradict each other.
- A division that leaves every heir with at least the specific share computed for him, so that no heir's right in the estate is infringed.
Record verification notes
Take the assets present at the opening of succession one by one and mark each as still held or disposed of, then read the share computation against the division list. Check which special benefits were deducted at the first stage, since the deduction sets the specific share that the division must return. Confirm which version of Articles 1008, 1008-2 and 1013 of the Civil Act governed at the date of the ruling below.
From the official text
Points at issue
[1] 구체적 상속분의 의미 및 그 산정의 기준 시기(=상속개시 시) / 법원이 상속재산 분할방법을 후견적 재량으로 결정할 수 있는지 여부(적극) 및 그 한계 [2] 상속개시 당시 상속재산을 구성하던 재산이 그 후 처분되어 상속재산을 구성하지 않게 된 경우, 분할의 대상이 될 수 있는지 여부(원칙적 소극)
Unofficial English translation
[1] Meaning of the concrete share of inheritance and the time used as the basis for calculating it (= the time of the opening of the succession) / Whether a court may determine the method of dividing the estate at its guardianship discretion (affirmative) and the limits thereof [2] Where property that constituted the estate at the time of the opening of the succession is thereafter disposed of and ceases to constitute the estate, whether it may be subject to division (in principle, negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심결정 중 본심판 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.
Unofficial English translation
The part of the order of the court below concerning the merits of this case is reversed, and the case in this part is remanded to the Seoul High Court.
Provisions referred to
[1] 민법 제269조, 제1008조, 제1008조의2, 제1009조, 제1013조 [2] 민법 제1013조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
Back to the ledger