상속권상실선고에 관한 법무부 개정안의 문제점

초록

In Korea the consensus has been made recently that succession law should be revised to deprive of the heirship from parents who has willfully abandoned the care and maintenance of his/her child. The Korean Ministry of Justice proposed a legislative bill to revise the succession law and gave a public preview of the legislation. Its main content is to introduce a new system called declaration of deprivation of heirship. However, the declaration of deprivation of heirship established by the Ministry of Justice needs to be considered. First, according to Article 1004-2 (1) of the bill, if there is a certain reason {such as a grave violation of the obligation to support the person to be decedent who will be successed}, the person to be decedent may claim the declaration of deprivation of heirship of the presumptive heir in his lifetime in Court. This regulation is modeled after Article 892 of the Japanese Civil Code which has historically originated from the system of the declaration of deprivation of heirship (exheredatio) in the succession system of the headship of a family in the old Japanese Civil Code. When initially enacting succession in Korean Civil Code, even though referred widely to the Japanese Civil Code, but did not count the regulations on the system of the declaration of deprivation of heirship in the Japanese Civil Code. It is doubtful whether there is any reason to follow the Japanese regulations now in the korean succession system. According to the bill, the person who will be the decedent and the person who will be the heir (in many cases, parents and children) will argue against each other in the court over the deprivation of heirship. In this process, the relationship of them is likely to break down. If the unique exheredatio in Japanese succession system will be introduced in Korea which has different historical and cultural background, there are concerns about many negative results. Second, according to Article 1004-2 (3) of the bill, if there is a certain reason (the reason for the deprivation of heirship as prescribed in Article 1004-2 (1) of the bill), a person who is included in the list of legal heirs after the commencement of succession may claim the deprivation of heirship of the heir at the family court. This is a regulation that may result in the deprivation of heirship at the request of a person who is included in the order of legal successors, regardless of the intention of the decedent. If the decedent in the lifetime were willing to the deprivation of heirship of presumptive heir, he would have claimed to deprive him/her of heirship at the family court in his lifetime under Article 1004-2 (1) or expressed his intention to deprive of heirship in his/her will under Article 1004-2 (2) of the bill. If the decedent did not file a claim for declaration of the deprivation of heirship or express his intention in his/her will during his/her lifetime, it can be said that he/she has no intention of deprivation of heirship. Nevertheless, Article 1004-2 Clause 3 of the bill allows claim for the deprivation of heirship to those who have no substantial interest in succession. It is not known what grounds are for recognizing the deprivation of heirship even regardless of the intent of the person to be decedent. It is reasonable to disqualify the heir for heirship corresponding to certain statutory reasons regardless of the heir's will. Third, according to Article 1004-2 (5) of the bill, if the decision of the deprivation of heirship is confirmed after the commencement of succession, the heir will lose the heirship retroactively to the commencement of succession. This retrospective effect does not impair the rights of a third party. This is to protect those who have received the property of succession from the heir before he/she was deprived of the ownership due to the the deprivation of heirship. However, Article 1004 of the Korean Civil Code does not provide for third party protection against the retroactive effect of disqualification of heirship. The deprivation of heirship under the bill and the disqualification of heirship under Article 1004 of the current Civil Code have the same legislative purpose substantially, but it is not equity to stipulate protection for third parties in other ways. It may be approved to the purpose of legislation to exclude an heir (to be an heir) falling under Article 1004-2 (1) of the bill from succession. However, considering the harmonization with the succession law system, the specific realization must be carried out in other way. If some of the reasons referred to in Article 1004-2 (1) of the bill are incorporated into the reasons for disqualification of succession under Article 1004 of the Civil Code and the rest are defined as reasons for deprivation of heir legally secured portion of succession, the legislative purpose of the bill can be realized and harmonized with the successioon law system in Korean Civil Code.

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