법정상속인에 대한 재검토

• 영문명: Reexamination of the Legal Descent
• 발행기관: 한국가족법학회
• 저자명: 이은정(Eun-Jung Lee)
• 간행물 정보: 『가족법연구』가족법연구 제18권 2호, 225~258쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.09.01

영문 초록

This article reexamines the legal regulations regarding successorship in the civil law that require amendment, considering diverse views on the basis of succession. The summary of recommended amendments on the legal heir is shown below. First of all, the first priority of lineal descent should be limited to sons and daughters, and succession by lineal descendants as far as and beyond grandchildren should be revised to succession by representation. As for succession by representation, when considering the range of heirs, succession by representation of the children’s direct descendents should be limited to within cousins. Lineal ascendant should be limited to grandparents, and the priority of inheritance should differ among parents and grandparents, so parents should have the second priority of inheritance and grandparents should have the third priority along with siblings of the deceased. Also considering the obligation of mature children to support the parents, parents who have no children except for the deceased, should have the opportunity to inherit with children of the deceased. However, considering the basic principles of inheritance that lineal descendants have the priority over lineal ascendants, the amount of inheritance can be different between children and parents of the deceased. In case of foster parents and foster children, when lineal ascendants like parents or collateral kinship are legal heirs, it is correct in the light of the principle of equity in succession law to classify them according to real family or adaptive family, and then allow each half of the inheritance. In case of siblings, they should be treated differently in inheritance depending on whether they have same parents or different mother or father. As for the right of succession by representation by lineal descendents of siblings, it should be limited to the children of siblings. The range of collateral kinship except bothers and sisters as the legal heir, should be limited to the first cousin, and considering the present form of families, it should be limited to lineal descendants of grandparents. Therefore, the order of inheritance of the legal heir is the following: The first priority are children of the deceased, and parents who have no children except for the deceased. The second priority are parents of the deceased, the third are grandparents and siblings of the deceased, and the fourth are collateral kinship limited to first cousins. But in the fourth priority, collateral kinship should be limited to lineal descendant of grandparents. As for the inheritance right of a spouse, a spouse married without a marriage license, a spouse with a proceeding divorce, and a spouse with a proceeding annulment, should not have the right of inheritance. But, under the succession law that denies the system of living separately, it is inevitable to recognize the inheritance right of a spouse even if couples have actually divorced. However, a spouse, excluded in the right of inheritance, should have the right of claim for property division at the time of dissolution of a marriage come from death of the other party, instead of the inheritance right. The amount of inheritance of a spouse should be revised for confirming the fixed amount and for reasonably increasing its amounts to the rational standard, and in case of the dissolution of a marriage come from death of the other party, it is desirable to calculate the amount of inheritance after dividing matrimonial property. In the relationship by marriage, as the relationship between stepparents and stepsons, or between the deceased and a daughter-in-law of the deceased, the relatives by marriage should not have the right of inheritance. However, in special cases, for instance when they need support for living expenses, succession law should be revised so that they could claim some amounts for contribution or use distribution system for special relatives.

목차

Ⅰ. 머리말

Ⅱ. 법정상속인에 관한 입법례

Ⅲ. 혈 족

Ⅳ. 배우자

Ⅴ. 인 척

Ⅵ. 맺음말

참고문헌

ABSTRACT