한정승인의 계수와 개선방향

Abstract

The inheritance system in East Asian traditional societies was premised on the succession of debt, and there was no form of system to cover the inheritance debt at the limit of the inherited property. In the process of the modernization of Japan, various Western legal systems were adopted, and a new system called the “Heir’s Limited Liability” system was also adopted in civil law. The Heir’s Limited Liability of Japanese former Civil Code, so-called “Boissonade Civil Code”, strongly influenced by France, underwent some structure changes at the stage of Meiji Civil Code, referring to other European legal practices. The Korean system is similar to the structure of the Japanese one. Legislators in the Japanese civil law regulate that when an inheritance is initiated, the heir must take the same care regarding the inheritance as he or she would about his or her own property, and after the approval of limited liability, the same standard obligation of care shall still exist. By the way, on the liquidation procedure for the inherited debts, which is part of the administration of the inherited property, the former Civil Code and the Meiji Civil Code are taking different positions. In the case of the former, the heir is required to take a low-impact method to repay the inheritance debt, while in the case of the latter, the heir should take the administration obligation, which required to liquidate in a more stringent manner, similar to bankruptcy process. The Korean system was influenced by the latter. The purpose of the Heir’s Limited Liability system is recently often referred to in the Korean Supreme Court, and discussions are being made on which side of the heirs or the creditors of inheritee should be protected preferentially. Upon examination of the legislation history and the present form of regulation, it is concluded that although the scheme of this system is intended to protect the heirs, it should not be operated in the direction of protecting the heirs at the expense of the creditors of inheritee. In addition, under the present deficiency of regulations, various problems could arise, so it is necessary to review the basic detalis of the system itself and improve the legislation.