선순위 혈족상속인 전원의 상속포기와 그 효과

Abstract

As to a effect of renunciation of inheritance, Korean Civil Act only has so simple and partial provisions. Therefore, lots of its parts are brought into interpretation by precedents and theories. Meanwhile, it is undoubtedly true that there has been no animated discussions with regard to an effect of renunciation of inheritance. And, when the decedent’s blood relatives and his/her spouse come into inheritance jointly, what does result in if all the blood relatives give up their inheritance? This has hardly been discussed until recently, in particular. On May 14, however, Korean Supreme Court held that the decedent’s spouse and his/her other issue(ex. grandchildren or parents) inherit the estate jointly, when the all the descendants renounce their succession in case the decedent’s blood relatives and his/her spouse come into inheritance jointly. This decision is following its well-established precedent that those who would give up his/her inheritance are treated as he/she were not heirs ab initio. In this paper, I came up with a conclusion that a spouse inherits by himself/herself in such a same circumstance as that case, under critical examination of the Supreme Court’s decision above and other views. I also acknowledge that the person who has refused his/her succession is not heirs from the moment of decedent’s death. But, it doesn’t mean the disclaimant has died, only he is just regarded as ruled out from status of heirs. However, the logic of Supreme Court and its favoring views still have their persuasive powers in some degree. So, this kind of problem needs a seeking process for what fits in well with articles of Korean Civil Act. In this sense, we have still a possibility that a legislative approach can be an alternative.