상속관습법상 몇 가지 쟁점에 관하여 - 대법원 2012.3.5. 선고 2009다85090 등 판결을 중심으로 -

Abstract

The customary succession law before the establishment of Civil Act is still meaningful, because with regard to inheritance commenced before the date of enforcement of Civil Act, the customary succession law shall apply even after the date of enforcement of Civil Act (Supplementary Provisions of Civil Law Sec.25). In this condition the Supreme Court has declared an interesting decision about the customary succession law in 2012 (2009 da 85090 case), especially about the legal doctrine of Saengyangga-Bongsa and Chajongson- inheritance. Saengyangga-Bongsa is “a custom that an adopted son served not only an adoptive parents but also his own parents at his home or his ancestral shrine”. It had been known before the decision that any person who serve the Saengyangga-Bongsa has the right of inheritance, but the decision has reversed the existing theory. Furthermore the decision has revealed the requirements of Chajongson-inheritance as well, that is, Chajongson can inherit the head house only when the every man of the head house died. This article is written for justifying decision through historical materials.