피상속인의 배우자와 자녀 중 자녀 전원이 상속을 포기한 경우 상속재산의 귀속 ― 대법원 2023. 3. 23.자 2020그42 전원합의체 결정 ―

Abstract

The subject decision relied on a systematic and logical interpretation of the text of the Civil Code, and held that the spouse of the decedent becomes the sole heir when both the spouse and all of the children of the decedent give up the inheritance. However, according to the logical and systematic interpretation of the Civil Code, the children of a disinherited decedent are treated as if they were not heirs from the time the inheritance commenced (Article 1042 of the Civil Code), and the grandchildren and spouse of the decedent become joint heirs (Article 1000 of the Civil Code and Article 1003 of the Civil Code), and the inheritance of the disinheritor is attributed to each of them in the proportion of the inheritance of the spouse and grandchildren (Article 1043 of the Civil Code). It is also stated that the subject decision should take into account the will of the disinheritor, but it is not reasonable because it is not always clear whether the will of the disinheritor needs to be taken into account in individual cases, i.e., whether the will of the disinheritor has legal protection value, and the will of the immediate family members or immediate survivors of the disinherited person affected by the disinheritance should also be taken into account. In addition, the conclusion of the subject decision is not justified in light of the fact that Article 1019 of the Civil Code already provides for the protection of junior blood heirs from inheritance debts, and that the validity of the registered inheritance of the decedent’s spouse is questioned under the premise that the decedent's grandchildren or lineal descendants will inherit jointly with the decedent. Therefore, under the current civil law system, it is reasonable to conclude that the existing precedent is that the spouse and grandchildren of the decedent inherit jointly if only the spouse and children of the decedent have given up the inheritance.