Background
Long ago, in dividing an estate, it was agreed that "this land belongs to our client." To avoid debt-related complications, inheritance registration was placed provisionally in the stepmother's name, on the understanding that the land would later be gifted by her to our client. Our client built a house on the land, lived there for more than a decade and paid off the loan — but before the transfer of ownership was completed the stepmother died, and her other heirs completed inheritance registration over the property. Changchun represented our client (the plaintiff), who sought to recover the property.
The Issue — Can a Gift Without a Written Contract Be Recognized?
A gift may be formed by an implied declaration of intent, without any prescribed form such as a written contract (Civil Act art. 554). Its existence must, however, be proven from the totality of the circumstances, including the parties' conduct and the background (Supreme Court 2011Da30765, among others). The opposing heirs countered that "there is no evidence establishing a gift agreement, and as an unwritten gift we hereby rescind it."
How Changchun Helped
Changchun (attorney Jaeyoon Jung) proved that an implied gift agreement had been formed no later than the point at which the mortgage was created, drawing together ① the estate division agreement, which recorded that "the land belongs to our client"; ② the fact that our client had built a house there, lived in it for more than thirteen years and personally bore the loan principal and interest as well as occupancy charges; and ③ the fact that a recommendation for settlement transferring ownership to our client had already been confirmed as against some of the other heirs. We further invoked the indivisibility of rescission (Civil Act art. 547(1)) — that the right of rescission must be exercised by all heirs together — to argue that once some heirs had transferred ownership by settlement, the remaining heirs could no longer rescind the gift.
Outcome
The court granted our client's principal claim and ordered the heirs to complete the transfer of ownership registration to our client on the ground of gift. Our client finally secured ownership of the home where they had long lived.
Even without a written contract, carefully assembling objective circumstances — long possession, the bearing of costs, related agreements — can establish an "implied gift" and recover the property. (Outcomes may differ depending on the facts of each matter.)