특별한정승인과 미성년 상속인 보호 - 대상판결: 대법원 2020. 11. 19. 선고 2019다232918 전원합의체 판결 -

Abstract

An inheritor succeeds, from the time of the commencement of the inheritance, to the blanket rights and duties pertaining to the property of the inheritee. However, the inheritor may, within three months of the time he/she has knowledge that there has been the commencement of the inheritance for him/her, effect a qualified acceptance or a renunciation of the inheritance, and where an inheritor has made an absolute acceptance without knowing the fact that his/her inherited liability exceeds his/her inherited property within the above period without any gross negligence (including such statutory absolute acceptance under subparagraphs 1 and 2 of Civil Law Act Article 1026), a special qualified acceptance may be also made within three months of the time he/she has such knowledge. Notwithstanding such special qualified acceptance process available, where the inheritor is a minor, it become problematic that the decision of whether to effect the special qualified acceptance after he/she has knowledge that his/her inherited liability exceeds his/her inherited property is entirely in his/her legal representative’s hands. That is, if the legal representative decides not to undertake the special qualified acceptance, the inheritor has no choice but to inherit the liability, which is unreasonable from the perspective of the inheritor. The subject case decided that, in a special qualified acceptance case, it is not the minor inheritor, but the legal representative that should be determined to (1) know that the inheritor’s inherited liability exceeds the inheritor’s inherited property within the period without any gross negligence and (2) have knowledge of such fact on the date after which the legal representative decides whether to undertake the special qualified acceptance, in accordance with the Supreme Court cases established so far. Furthermore, the subject case decided whether a new special qualified acceptance could be effected by the inheritor at his/her discretion after such minor inheritor reaches the age of majority. Although the subject case took the position that such new special qualified acceptance cannot be effected under the current law, it acknowledged the need for protection of minor inheritors and presented legislative examples of other countries and urged for legislative changes by referring to those examples. This paper has reviewed the subject case and further reviewed the legislative examples of other countries, as well as the pending bills at the National Assembly on the point of protection of minor inheritors and also presented the author’s opinions.