배우자상속권 강화에 관한 법무부 개정시안 검토

Abstract

South Korea entered ‘Ageing Society’ as the number of people whose ages are over 65 is over 7% of its overall population in 2000, and is expected to enter ‘Aged Society’ in 2018. Despite this change in our society, it is a social atmosphere that children of the aged do not want to take care of their parents. Therefore, it becomes a big social issue that the living expenses of surviving spouse are increased upon the other spouse’s decease. Under this situation, the Civil Law Revision Committee prepared a draft of the Inheritance Law Revision and submitted it to the Ministry of Justice. According to Article 1008-4 Section 1 (the Lien of Spouse) of this draft, it states that “the surviving spouse of an inheritee has a right to receive a half of the inheritee’s properties which were increased during their marriage life and remains at the time of inheritance after deducting debts. This right supersedes all other inheritors allowing the spouse to receive 50 % of the inheritance and the other inheritors to receive the other 50% according to their respective shares. It seems appropriate that the draft of the Revision limited the scope of inheritance to the extent which were increased during the marriage life and which existed at the time of inheritance deducing debts. Because the court recognizes a housewife’s contribution to the extent of 30% to 50%, it seems reasonable that the court recognizes the common share of surviving spouse according to their contribution with respect to division of properties in the case the marriage is dissolute by the death of one spouse. Furthermore, the policy of deducting prior acquisition portion is appropriate. This policy is premised on the fact that the surviving spouse has contributed more to accumulating the inheritance assets, compared to other co-inheritors. When this premise is not applicable, there should be a proper method of deducting the priority portion in order to be reasonable. The draft of the Revision has been criticized for the problems that the extent of priority portion was not specified, and there is no limitation on the time that spouse can exercise its priority right. Moreover, the consideration between Request of Recovery of Priority Right and the policy of Recovery of Inheritance Right is not balanced so that the dispute among inheritors can be increased. The draft of the Revision has been also criticized that it affects the clarity of inheritance relationship and legal stability. However, despite these problems in the draft of the Revision, the policy that strengthens a prior distribution right to a surviving spouse has become unstoppable. The Spouse Prior Right to Inheritance Policy allows a surviving spouse to receive a half of inheritance assets increased during the marriage period in advance. Further, this policy reflects the current social phenomenon that inheritance assets include a surviving spouse’s common share as the children of the parents do rarely contribute to the accumulation of their parent’s properties. Most countries in Europe and Japan legally guarantees the spouse prior right. However, this policy needs to be supplemented and modified through the various discussion processes which shares a diversity of opinions with close review.