상속의 효력 규정의 정비를 위한 검토 - 민법 제1005조에서 제1018조 -

• 영문명: Review of the Regulations on the Effect of Succession - Article 1005 to Article 1018 of the Civil Act -
• 발행기관: 한국가족법학회
• 저자명: 이은정(Eun Jung Lee)
• 간행물 정보: 『가족법연구』가족법연구 제18권 1호, 127~163쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.03.01

영문 초록

For the purpose of improving the regulations on the effect of succession, the following items need to be examined: (1) It is desirable to be accurate in law in regards to whether the portion of individual inherited property may be disposed of and whether the divisible claim may be included in the division of inherited property in relation to the jointly inherited property’s legal nature. When the co-owned property regulations in the Civil Act is applied mechanically to the jointly inherited property control, such application can stray from the fundamental aims of the inherited property control. Thus, we need to examine the related legislation carefully. More concretely, some duty of care related regulations of the administrator of inherited property’s appointment and supervision should be prepared, which I believe, should be regulated by the criterion of accomplishing the fundamental aim of managing the relation of joint inheritors or inheritor and the third party. And in relation to inheritance of the property for sacrificial rite, the criterion of the inheritor should be regulated clearly and the scope of inheritance of the property for sacrificial rite should be adjusted to fit the needs of our time. (2) In relation to the portions of statutory succession, the spouse’s portion should be fixed in spite of the number of inheritors and should be increased rationally. Under the current law of both side blood relativism, the portions of fraternal of same parents and of fraternal of one side parent need to be differentiated. With respect to the special beneficiary, the criterion or concrete example of the range for the return of donation, inter vivos, need to be regulated. The legacy should be excluded from the such range except for the case of dissent of the predesessor. In addition, clear regulations is needed on the return of special beneficiary, the time needed to evaluate special beneficiary and the return exemption. As for the contributory portion, we should examine the strike off of “special support” as donation, creating support inherited property, etc. In relation to the legal quality of contributory portion, the contributory portion system in our Civil Act should determine whether the property quality or the adjustmental quality between the inheritors has priority to consider. Also, with respect to the acquisition right of inherited property portion, the inherited property means only an individual property not a family property, which no longer make “acquisition right of inherited property portion” a proper concept but rather, preemptive right system is desirable. (3) In relation to the division of inherited property, the criterion of such division should be regulated. The inherited property is divided by the judicial discretion of Domestic Relations Court, which means we need to prepare the other criterion for it because the inherited property division is different from the division of general property. In Addition, when social and economic wholeness is needed such as farmland, we should consider regulating such property specifically through the Civil Act though such property is currently being regulated by the Farmland Act.

목차

Ⅰ. 머리말

Ⅱ. 일반적 효력의 정비를 위한 검토

Ⅲ. 상속분의 정비를 위한 검토

Ⅳ. 상속재산 분할의 정비를 위한 검토

Ⅴ. 맺음말

참고문헌

ABSTRACT