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1988 (O) 115

1990.09.27
1988 (O) 115
Minshu Vol. 44, No. 6
Judgment concerning the case regarding an agreement on the division of inherited property and cancellation by agreement, and advisability of an agreement on redivision
Case of procedure for registration of cancellation of registration of transfer of ownership in land
Judgment of the First Petty Bench, dismissed
Sapporo High Court, Judgment of October 14, 1987
Joint heirs may cancel the whole or part of an already-established agreement on the division of inherited property by agreement given by all of them and establish another agreement on the redivision of inherited property.
Articles 545, 907, and 909 of the Civil Code

Civil Code
Article 545 (1) If one of the parties exercises his/her right to cancel, each party shall assume an obligation to restore the other party to that other party's original position; provided, however, that this shall not prejudice the rights of a third party.
(2) In the case set forth in the main clause of the preceding paragraph, if any monies are to be refunded, interest must accrue from the time of the receipt of those monies.
(3) The exercise of the right to cancel shall not preclude claims for damages.

Article 907 (1) Joint heirs may at any time divide inherited property by agreement except in the case where this is prohibited by the decedent's will pursuant to the provision of the following Article.
(2) If agreement is not, or cannot be, settled between joint heirs regarding division of inherited property, each of the joint heirs may make an application to the family court for a division of the inherited property.
(3) In the case referred to in the preceding paragraph, if there is a special reason, the family court may prohibit the division of the inherited property, in whole or part, for a specified period.

Article 909 Division of inherited property shall have retroactive effect from the time of the commencement of inheritance; provided that this shall not prejudice the rights of a third party.
The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellant of final appeal.
Reason I for a final appeal stated by the counsels for final appeal

The law does not naturally preclude all the joint heirs from cancelling the whole or part of an already-established agreement on the division of inherited property by agreement and making another agreement on the redivision of inherited property, and the amendment of the agreement on the division of inherited property as alleged by the appellant is also considered to refer to cancellation of an agreement on the division of inherited property by agreement and an agreement on the redivision of inherited property. Therefore, the judgment in prior instance must be considered to contain an error in the interpretation of laws and regulations in that it determined that said amendment is unacceptable and the aforementioned argument itself is unreasonable. However, the judgment in prior instance is considered, in light of its explanation, to have found and determined that there is no sufficient evidence to affirm the aforementioned fact alleged by the appellant. This finding and determination are convincing in light of the evidence indicated in the judgment in prior instance. Therefore, the determination of the court of prior instance that rejected the aforementioned allegation of the appellant can be accepted in terms of its conclusion. The arguments are, in the end, denouncing the explanatory part in the judgment in prior instance that does not affect its conclusion, and thus are not acceptable.

Reason II for a final appeal stated by the same counsels for final appeal

The findings and determination of the court of prior instance regarding the counsels' arguments are legitimate and can be accepted in light of the evidence indicated in the judgment in prior instance, and the process thereof contains no illegality as argued by the counsels. The arguments are, in the end, only criticizing the selection of evidence and findings of facts made by the court of prior instance under its exclusive power, and thus are not acceptable.

Accordingly, in accordance with Articles 401, 95, and 89 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text.
Justice OHORI Seiichi

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice YOTSUYA Iwao

Justice HASHIMOTO Shirohei
(This translation is provisional and subject to revision.)