상속권상실선고 제도의 절차법적 관점에서의 몇 가지 검토 과제

• 발행기관: 한국민사소송법학회
• 저자명: 김원태
• 간행물 정보: 『민사소송』제25권 제2호, 173~230쪽, 전체 58쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.06.30

영문 초록

Recently, Ministry of Justice decided to introduce a system of Declaration for Forfeiture of the Right to Inherit, which allows Family Court to deprive an heir presumptive with a legal portion as an heir of his or her inheritance qualification(inheritance right) according to the request of a predecessor ① when the person to be an heir made a major violation of his or her duty to support for the predecessor or ② he or she committed a major crime, abuse or very poor treatment to the predecessor, his or her spouse, or lineal blood relative. In relation to it, a system of Declaration for Forfeiture of the Right to Inherit was established newly in civil law with the partial revision of the inheritance by representation system. At the same time, Family Litigation Act was partially revised in its supplementary provisions to introduce ①the Declaration for Forfeiture of the Right to Inherit under Type Na of family litigation cases and ② temporary order for the preservation and management of inherited property under Type Ra of family non-litigious cases(Article 4 of Supplementary Provisions in Proposal of Civil Code). The new establishment of a certain system via even partial revision of relative and inheritance provisions in civil law becomes an important issue that might cause a seismic shift in Family Litigation Act that regulates its procedure of realization the moment when it moves within the court s jurisdiction. It is thus needed to review fully potential tasks in the aspect of procedural law before introducing a new system via the revision of family law. Especially more attention should be paid to the introduction of a rule in the procedural law when it takes the form of revising another law via the revision of substantial law. This paper aims to review in advance anticipated issues in the procedural law when a system of Declaration for Forfeiture of the Right to Inherit is established anew according to the Proposal of Civil Code. With a focus on the Proposal of Civil Code, the study mainly reviewed tasks in the aspect of procedural law including the followings: ① matters within the jurisdiction of Family Court and the eligibility of an object of family mediation, ② legal standing and other heirs intervention in the procedure, ③ possibilities of taking over the procedure when the said person passed away in the middle of a suit, ④ competent court including territorial jurisdiction, ⑤ temporary order for management of inherited property, ⑥ trial to Declaration for Forfeiture of the Right to Inherit and its effect, ⑦ procedure to cancel an Declaration for Forfeiture of the Right to Inherit, and ⑧ prerequisite for an heir in the division of inherited property.

목차

Ⅰ. 머리말

Ⅱ. 제도의 의의와 법적 성질

Ⅲ. 당사자적격 등과 관할법원

Ⅳ. 심리 및 재판

Ⅴ. 맺는말

키워드

가사비송 가사소송 가사조정 상속권상실선고 상속재산관리에 필요한 처분 상속재산분할 절차보장 family non-litigation case family litigation family mediation declaration for forfeiture of the right to Inherit temporary order for management of inherited property division of inherited property due process