상속권상실선고의 문제점에 대한 재론 - 법무부 개정안에 대한 비판과 반론 -

초록

After the Ministry of Justice announced a legislative amendment providing for the declaration of forfeiture of the right to the inheritance in January 2021, we published a paper titled "Problems with the amendment of the Ministry of Justice on the Declaration of Forfeiture of the Right to the Inheritance.“ It triggered a debate over the amendment of the Ministry of Justice. Some of the papers published so far contain arguments that refute our views, and we thought it was necessary to deepen the discussion by reviewing the validity of the arguments once again. This paper dealt with four issues, and the details are as follows. First, it is a criticism and counterargument that the declaration of Forfeiture of the Right to the Inheritance in the amendment of the Ministry of Justice is modeled on the disinheritance of the presumed heir in the Japanese Civil Code. Second, according to the legislative amendment of the Ministry of Justice, it is possible to deprive the right to the inheritance of a person who will become an heir by filing a suit in Family Court before the commencement of inheritance. The criticism that it can not be in harmony with the Korean Civil Code about inheritance and counterargument against that are discussed. Third, according to the amendment to the Ministry of Justice, if the inheritee forgives after the declaration of forfeiture of the right to the inheritance is confirmed irrevocably, the declaration of forfeiture of the right to the inheritance will become invalid, but the criticism that it is not in harmony with our legal system to make the judgement confirmed irrevocably invalid only by person’s intend and counterargument against that are discussed. Fourth, in the previous paper, we proposed the expansion of reasons for disqualification of inheritance and the introduction of a system for the deprivation of the legally reserved portion of inheritance as an alternative to the amendment to the Ministry of Justice. Some argue that the introduction of the deprivation of the legally reserved portion of inheritance overlooks the structural nature of our inheritance law, and the deprivation of the legally reserved portion of inheritance can only be recognized on the premise of designation of heir by will. In this paper, after discussing the above four issues, we suggest as a alternative to add "when a parent fails to fulfill obligations to support his/her child and visitations" to reasons for disqualification from inheritance. According to Article 908-2 (2) of the Korean Civil Code, if there are the above reasons, the family court may accept a request for full adoption without the consent of birth parent. As it is possible for birth parents to extinguish their legal paternity against their will because of failing to fulfill their obligations of support and visitation for reasons responsible for them (this will result in the loss of the status of potential heirs), it is not considered unreasonable that a legislation have the disqualification of heir on the same reason. It is argued that the concept of fulfillment of the obligation to support is relative and difficult to determine whether it is violated, but its not convincing considering that the same concept is already used as the requirement for adoption of full adoption leading to the extinction of paternity.

키워드