피상속인의 배우자와 자녀 중 자녀 전원이 상속을 포기한 경우 상속재산의 귀속

• 영문명: Attribution of inheritance property in case only the children of the deceased heir renounce their inheritance, while the spouse does not: the Supreme Court’s decision on March 23, en banc decision
• 발행기관: 한국가족법학회
• 저자명: 권오상(Ohsang Kwon)
• 간행물 정보: 『가족법연구』第38卷 1號, 27~56쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.03.30

영문 초록

The subject decision relied on a systematic and logical interpretation of the text of the Civil Code, and held that the spouse of the decedent becomes the sole heir when both the spouse and all of the children of the decedent give up the inheritance. However, according to the logical and systematic interpretation of the Civil Code, the children of a disinherited decedent are treated as if they were not heirs from the time the inheritance commenced (Article 1042 of the Civil Code), and the grandchildren and spouse of the decedent become joint heirs (Article 1000 of the Civil Code and Article 1003 of the Civil Code), and the inheritance of the disinheritor is attributed to each of them in the proportion of the inheritance of the spouse and grandchildren (Article 1043 of the Civil Code). It is also stated that the subject decision should take into account the will of the disinheritor, but it is not reasonable because it is not always clear whether the will of the disinheritor needs to be taken into account in individual cases, i.e., whether the will of the disinheritor has legal protection value, and the will of the immediate family members or immediate survivors of the disinherited person affected by the disinheritance should also be taken into account. In addition, the conclusion of the subject decision is not justified in light of the fact that Article 1019 of the Civil Code already provides for the protection of junior blood heirs from inheritance debts, and that the validity of the registered inheritance of the decedent’s spouse is questioned under the premise that the decedent's grandchildren or lineal descendants will inherit jointly with the decedent. Therefore, under the current civil law system, it is reasonable to conclude that the existing precedent is that the spouse and grandchildren of the decedent inherit jointly if only the spouse and children of the decedent have given up the inheritance.

목차

Ⅰ. 사건의 개요

Ⅱ. 논의를 시작하며

Ⅲ. 상속포기의 효과에 관한 쟁점들

Ⅳ. 대상결정의 타당성 검토

Ⅴ. 논의를 맺으며

키워드

상속포기 배우자 단독상속설 공동상속설 후순위 혈족상속인 상속포기의 소급효 renunciation of inheritance spousal sole inheritance joint inheritance junior blood heirs retroactive effect of renunciation of inheritance