동순위 혈족상속인 전원의 상속포기와 배우자상속 - 대법원 2015.5.14. 선고 2013다48852 판결을 중심으로 -

Abstract

The Supreme Court of Korea recently ruled that in case which all the Children of the Inheritee gave up their Inheritance, a Spouse and Grandchildren of a Inheritee should be joint heirs(2013da48852). This Conclusion was based on the Idea that the one who gave up the Inheritance are regarded as non-heir ab initio. However, it could be changed considering the letter of Korean Civil Code(KCC) Article 1043 which provides that in cases of two or more inheritors are exist and one of them has effected a renunciation of inheritance, his share of the inheritance shall revert to the other inheritors in proportion to their respective shares thereof. It is common to interpret “the other inheritors” of KCC Art.1043 as including a spouse of inheritance. Therefore, it could be read that the inheritance is provided to the Spouse solely when all the Children of an Inheritee gave up their Inheritance. The Conventional Wisdom is also in line with the Judgment. It would be reasonable because the Subject to the Renunciation of Inheritance is not just inherited property, but Position as Inheritor(Heirship). Nevertheless, This does need to be carefully considered to avoid having an undue Effect on the Inheritance Rights of Spouse. The Share of Spouse's Inheritance is closely connected to that of Blood Relative’s in Civil Law of Korea unlike to that of Japan. Therefore, if Blood Relatives abused the Renunciation System of Inheritance, Inheritance Rights of a Spouse would be significantly weakened. Furthermore, according to this Supreme court's decision, Debts are passed from generation to generation without taking into consideration of interested parties’ Intentions. In conclusion, a Spouse becomes sole inheritor when all the Blood Relatives of Inheritee in same order give up the Inheritance. In theory, it might be worth for consideration to grant Art.1043 Special Provision Status against Art.1000 or Art.1003.