대법원 2001. 3. 9. 선고 99다13157 판결에 대한 판례평석 - 소위 괌에서의 KAL기 추락사건 -

• 영문명: Presumption of Simultaneous Death and Succession by Representation
• 발행기관: 한국가족법학회
• 저자명: 안영하(Young-Ha An)
• 간행물 정보: 『가족법연구』가족법연구 제19권 2호, 483~524쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.09.01

영문 초록

This paper deals with the Supreme Court's Decision of 2001. 3. 9, 99 다 13157. The issues of this decision are Presumption of Simultaneous Death and Succession by Representation. The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. That is to say, Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor. And In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor. However, In case two or more persons died of the same peril, it is presumed that they died at the same time. So then, if predecessors and a lineal descendant or a brother or sister who would become an inheritor in accordance with the Article 1000 (1) 1 and 3 are presumed that they died at the same time, is Succession by Representation recognized? This paper and the Supreme Court's Decision recognized it. And this paper deals with the case that all of lineal descendants or brothers or sisters who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, have died, or have become disqualified before the commencement of succession. A has two sons, B and C. And B has two sons D and E, C has only one son, F. If All of A's sons(B and C) have died, or have become disqualified before the commencement of succession, Legal Portions in Inheritance of F is what? The succession of grandsons and nephews of predecessor is composed as following. If all of sons or Brothers and sisters who would become an inheritor have died, or have become disqualified before the commencement of succession, the succession of grandsons and nephews of predecessor is provided not Article 1000 paragraph 1, but Article 1001. After all, the shares of succession of them are Article 1010. But if all of sons or Brothers and sisters who would become an inheritor have renounced the right of succession, the succession of grandsons and nephews of predecessor is provided not Article 1001, but Article 1000 paragraph 1. So the shares of succession of them are Article 1009. In this case, according to article 1000, Legal Portions in Inheritance of F is 1/3. But according to article 1001, Legal Portions in Inheritance of F is 1/2. I think that if all of lineal descendants or brothers or sisters who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, have died, or have become disqualified before the commencement of succession, their sons are applied to article 1001. In conclusion, the Supreme Court's Decision of 2001. 3. 9, 99 다 13157 is justified.

목차

【사건 개요】

【대법원 판결】

【연구】

Abstract