상속재산의 강제집행절차에 있어서 상속채권자와 한정승인을 한 상속인의 조세채권자 사이의 우열관계 - 대법원 2016. 5. 24. 선고 2015다250574 판결을 중심으로 -

Abstract

If the inheritor gives his qualified acceptance, there occurs a problem in the conflict of interests between a creditor of the inheritee and a creditor of the qualified acceptor surrounding inherited properties. This problem was dealt with for the first time by Supreme Court Full Bench Decision 2007DA77781 Delivered on March 18, 2010, in which there was a conflict of interests between the viewpoint of giving priority to a creditor of the inheritee and the viewpoint of giving priority to a mortgagee of the qualified acceptor on the priority between a creditor of the inheritee and a mortgagee of the qualified acceptor if the inheritor gives his qualified acceptance. In the standpoint of giving priority to a mortgagee, a majority opinion judged that, if qualified acceptance was performed, a creditor of the inheritee can not claim his priority status for inherited properties over a proper creditor acquiring security rights from the qualified acceptor. Later, in a case in which there occurred a problem of the priority between a creditor of the inheritee and a tax creditor having the status equivalent to security rights, subject decisions judged that a creditor of the inheritee has priority due to the principles of equity and the purpose of qualified acceptance system except concerned taxes despite considering the specificity of tax claims. First of all, in the above decision as the premise of subject decisions, this study closely analyzed rationales in the perspective of giving priority to a creditor of the inheritee and the perspective of giving priority to a mortgagee of the qualified acceptor, in terms of the possibility of compulsory execution on inherited properties by a creditor of the qualified acceptor, the purpose and ideology of qualified acceptance system, the effectiveness of disposal acts in inherited properties, the public announcement of qualified acceptance, remedies against the qualified acceptor’ unfair fraudulent act of diminishing properties, legal rationales on the right of preferential payment in a creditor of the inheritee, and the protection of parties’ interests. In addition, according to the results of examining subject decisions in the critical perspective by focusing on the purpose of qualified acceptance system and the conflict of interests arising from the lack in the public notice system of qualified acceptance, the viewpoint of giving priority to a creditor of the inheritee was verified. Next, in terms of the specificity of tax claims, after analyzing whether priority is given to a creditor of the inheritee even if a creditor of the qualified acceptor is a tax creditor in relation to subject decisions, this study examined the rationality and meaning of subject decisions. According to the perspective of giving priority to a creditor of the inheritee, the conclusion of subject decisions is a reasonable conclusion. In contrast, according to the perspective of giving priority to a mortgagee, after acknowledging the except of “unless security rights on inherited properties are acquired”, subject decisions acknowledge the priority given to a creditor of the inheritee, which is not clear in the aspects of logical consistency or operating subsequent compulsory execution proceedings, so that the perspective of giving priority to a creditor of the inheritee is rational. In light of the importance of inheritance in our contemporary society, these legal disputes are more likely to occur in the future if qualified acceptance is performed. Therefore, it is rational to acknowledge priority given to a creditor of the inheritee in compulsory execution procedures on inherited properties as well as it is urgent to prepare legislative complements including the public announcement methods of qualified acceptance.