민법의 관점에서 바라본 기판력과 집행력 - 상속의 한정승인과 포기를 중심으로 -

Abstract

Only if the legal force is admitted as essential attributes of the bonds, it is obvious that the action and the executive power are admitted corresponding to the possibility of appeal to the court and enforceability to the execution court, and correspondingly the debtor has the right of plea to limit the debt and the liability. Being acknowledged the legal force as essential attributes of bonds, the liability should be explained by being related with the concepts of the bond. Viewing this in conjunction with the qualified acceptance that the debt is limited the liability, the heirs may defend in the proceedings, or also defend in enforcement proceedings. If heirs don’t or can’t defend of the qualified acceptance in the proceedings, as the liability does not appear to judge the target to the principle of the oral proceedings system, the scope of the debt can’t not be limited. So the sole property of the heirs are subject to enforcement in principle. However, in this case because the liability in substantive law is limited by Civil Code Section 1028, i.e. corresponding to the executive claims of inheritance creditors, the debtor can defend of the scope of the responsibilities in the enforcement proceedings. As the result, the debtor brings the Lawsuit of Demurrer against Claims that excludes the general enforceability of the title of execution. On the other hand, because inheritance waiver is a plea to extinguish the debt itself, only a plea of inheritance waiver is recognized in the proceedings, and it can not be recognized in the enforcement procedures. In other words, a plea of inheritance waiver shall be made in the proceedings on the plea that it is limited to its own debt. If the heirs do not defend the plea of the renunciation of succession in the proceedings, owing to the lapse of res judicata the heirs can not brings the Lawsuit of Demurrer against Claims in the enforcement phase.