지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
After the Ministry of Justice announced a bill providing for the declaration of forfeiture of the right to the inheritance in January 2021, we published an article titled “Problems of the Bill Provided by the Ministry of Justice on the Declaration of Forfeiture of the Right to the Inheritance.”
It triggered a debate over the bill proposed by 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 revisiting the validity of the arguments once again.
This paper dealt with four issues, and the details are as follows. First, it is criticized in that the declaration of Forfeiture of the Right to the Inheritance in the bill provided by the Ministry of Justice is modeled on the disinheritance of the presumed heir in the Japanese Civil Code. However, there are objections to this criticism.
Second, according to the bill provided by 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 prior to the commencement of inheritance. There are a criticism that it can not be in line with the Korean Civil Code about inheritance and an objection to the criticism.
Third, according to the bill proposed by 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 there are the criticism that it is not consistent with our legal system to make the judgement confirmed irrevocably invalid only by person’s intend and an objection to the criticism.
Fourth, in our 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 bill proposed by 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.
After discussing the four issues mentioned above, this Article suggests as an alternative to add “when a parent fails to fulfill obligations to support his/her child(ren) and visitations” on basis of the reasons for disqualification from inheritance. According to Article 908 bis (2) of the Korean Civil Code, if there are the reasons mentioned above, the family court may accept a request for full adoption without the consent of biological parents. As it is possible for biological parents to terminate their legal paternity against their will because of failing to fulfill their obligations of support and visitation on basis of the reasons responsible for them (this will result in the loss of the status of potential heirs), it is not considered unreasonable that a bill provides 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 it is not plausible for us to consider that the same concept has been already used as the requirement for full adoption of a child leading to the termination of paternity.
It triggered a debate over the bill proposed by 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 revisiting the validity of the arguments once again.
This paper dealt with four issues, and the details are as follows. First, it is criticized in that the declaration of Forfeiture of the Right to the Inheritance in the bill provided by the Ministry of Justice is modeled on the disinheritance of the presumed heir in the Japanese Civil Code. However, there are objections to this criticism.
Second, according to the bill provided by 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 prior to the commencement of inheritance. There are a criticism that it can not be in line with the Korean Civil Code about inheritance and an objection to the criticism.
Third, according to the bill proposed by 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 there are the criticism that it is not consistent with our legal system to make the judgement confirmed irrevocably invalid only by person’s intend and an objection to the criticism.
Fourth, in our 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 bill proposed by 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.
After discussing the four issues mentioned above, this Article suggests as an alternative to add “when a parent fails to fulfill obligations to support his/her child(ren) and visitations” on basis of the reasons for disqualification from inheritance. According to Article 908 bis (2) of the Korean Civil Code, if there are the reasons mentioned above, the family court may accept a request for full adoption without the consent of biological parents. As it is possible for biological parents to terminate their legal paternity against their will because of failing to fulfill their obligations of support and visitation on basis of the reasons responsible for them (this will result in the loss of the status of potential heirs), it is not considered unreasonable that a bill provides 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 it is not plausible for us to consider that the same concept has been already used as the requirement for full adoption of a child leading to the termination of paternity.
목차
Ⅰ. 들어가는 말
Ⅱ. 일본민법이 법무부 개정안에 미친 영향
Ⅲ. 상속개시 전 상속권상실선고의 문제점
Ⅳ. 용서에 의한 상속권상실선고의 효력 상실
Ⅴ. 유류분상실(또는 상속권상실)제도의 도입에 관한 논의
Ⅵ. 대안의 제시
Ⅶ. 맺음말
참고문헌
국문초록
Abstract
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