한정승인한 상속재산의 배당시 상속채권의 순위 - 대법원 2016. 5. 24. 선고 2015다250574 판결을 중심으로 -

Abstract

Article 1028 of the Civil Code provides for a limited approval system that allows inheritors to approve inheritance on the condition that the heirs pay their debts and bequests at the limit of the property to be acquired by inheritance. Article 1028 of the Civil Code provides for the benefit of inventory that allows inheritors to approve inheritance on the condition that the heirs pay decedent's debts and bequests at the limit of the property to be acquired by inheritance. If the heir has a benefit of inventory, it will have the effect of restricting liability to reimburse inherited debts and bequests at the limit of the inherited property, so the creditor of the decedent can not enforce the property of the heir. However, even for the heir who has a benefit of inventory(qualified acceptor), there is no way to prevent an inheritor from disposing of inherited property in his / her name because he inherits a comprehensive rights obligation to inherit property, In addition, if the heir 's creditor submits a compulsory auction for an inherited property in the name of the heir with limited approval to satisfy his / her bond, the qualified acceptor' s own creditor may also participate in the dividend. In this case, it is a matter of whether the proceeds of the inheritance property should be distributed to the inheritance creditors in preference to the rights of the inheritance creditors, or to be distributed according to the dividend ranks prescribed by the Civil Execution Act without granting priority to the inheritance creditors. The previous Supreme Court decision (the supreme court decision 2007Da77781 claimed on Mar 18th, 2010) ruled that the creditors of the qualified accepters who acquired the security right by trusting the registration of the name of the qualified accepters should make dividends in preference to the inheritance creditors who inherit the general creditor. The Supreme Court's decision discussed in this paper decided that if the inheritance creditor is the general creditor and the creditor of the qualified acceptor is the tax creditor (the state), the inheritance creditor shall make dividends in preference to tax claims (tax bond other than the concerned tax imposed on the inherited property), unlike a principle that tax bonds precede general claims in the general auction dividend ranking. The above ruling is significant in the sense that it not only verifies that a creditor of a qualified acceptor who fails to acquire a security right against inherited property is subordinate to the inheritance creditor, but also judges that this principle applies even if it is a tax bond. Therefore, in this paper, we examine the theory and precedent of the relationship between the inheritance creditor and the qualified acceptor in relation to the ruling, and organize the dividend ranking in case the creditor of the heir intervenes in the auction of the inheritance after the benefit of inventory.