상속결격·상속권상실과 대습상속

• 영문명: Disqualification from Inheritance and Representation
• 발행기관: 한국가족법학회
• 저자명: 이동진(Dongjin Lee)
• 간행물 정보: 『가족법연구』家族法硏究 第35卷 2號, 93~118쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.07.31

영문 초록

In June 2021, the Korean government submitted a draft bill to revise the Korean Civil Code, the gist of which is to introduce a new institution of judicial deprivation of heirship on the account of his or her neglect of duty to support the deceased and to repeal disqualification as a cause of representation in heirship. The latter revision appears to aim at securing effectiveness of disqualification (as well as judicial deprivation of heirship) by preventing indirect benefit through the representing heir to the represented disqualified. The indirect benefit issue has been occasionally addressed in Korean literature as well as in other jurisdictions, while disqualification as well as judicial deprivation of heirship remains to be an established cause of representation in almost every jurisdiction. Though there were a few jurisdictions that denied representation in case of disqualification, most of them revised their codes so that now they also acknowledge disqualification (as well as judicial deprivation of heirship) as a cause of representation. It is not because they did not know the indirect benefit problem but because that possibility alone cannot justify the restriction of the right of the representing heir and it would amount to punishing sons for their farther’s fault. The same holds true to Korea and this draft bill. Repealing disqualification as a cause of representation is believed to be unconstitutional. It is expected that this flaw in the draft bill shall be fixed during the deliberation in the National Assembly.

목차

Ⅰ. 서 론

Ⅱ. 상속결격·상속권상실에서 대습상속의 문제

Ⅲ. 역사적·비교법적 고찰

Ⅳ. 개정안 비판: 특히 헌법적 관점에서

Ⅴ. 결 론

키워드

상속결격 상속권상실 대습상속 부양의무 해태 헌법 disqualification judicial deprivation of heirship representation neglect of duty to support constitutionality