미성년상속인의 보호와 특별한정승인 ―대법원 2020. 11. 19. 선고 2019다232918 전원합의체 판결―

Abstract

The majority opinion of the Supreme Court en banc Decision held that in a case where the qualified acceptance in terms of Paragraph (3) of Article 1019 is not allowed anymore because the exclusion period of 3 months has elapsed, wherein the child’s mother as his legal representative knew the fact that his liabilities exceed his assets, the minor in person is not entitled to effectuate a new qualified acceptance on the ground that a new period of 3 months begins after the minor reaches the age of majority and is aware that his inherited liabilities exceed his assets. Meanwhile, the dissenting opinions are of the view that the heir who has reached the age of majority in person may effectuate a new qualified acceptance within 3 months after knowing the fact that his inherited liabilities exceed his assets in a case where his guardian is not allowed to a qualified acceptance because of the 3 month expiration period. They pointed out that the Korean inheritance law is not equipped with any protection system of minor heirs under the principle of the inheritance acceptance in contrast with the German and French system, and this is not compatible with the ratio legis of the qualified acceptance aimed to protect self-determination and property rights of heirs, and also that inheritance obligee entered into contracts considering the assets of the deceased and the relavant regulations provide with the safety of the transaction in the case of the qualified acceptance. The main issues in this case are whether the notice of the qualified acceptance the plaintiff made and its receipt by the Court are effective. In this Commentary on the Decision, the position of our case law and the foreign legal systems of the protection of minor heirs are reviewed. The review is followed by the examination of the regulation of the inheritance of minor heirs beyond the subject Decision. Its conclusion is that the heir who has reached the age of majority shall effectuate a qualified acceptance within 3 months after knowing the fact that his inherited liabilities exceed his assets in a case where an acceptance was effectuated during his minority.