상속재산분할의 전제문제에 관한 소송법적 고찰

Abstract

According to Korean Civil Act, when there are co-inheritors, they succeed to blanket rights and duties of the inheritee in proportion to their share of the inheritance at the time of the commencement of the inheritance and become co-owners of the inherited property. The co-ownership is settled up by division of inherited property. In regulating inheritance relations, it is necessary to coordinate appropriately an intention of an inheritee and equity and fairness among co-inheritors. Co-inheritors may divide inherited property by their agreement, unless an inheritee determines otherwise in one’s will. If no agreement with regard to the division can be reached among the co-inheritors, any co-inheritor may file a request for an adjudication of the division with a family court. It is stipulated in Family Litigation Act that this adjudication shall be given through no-litigation procedure to realize fair distribution of inherited property among co-inheritors. The family court shall confirm the inheritors and inherited property of an inheritee and calculate the share of inheritance of the inheritors. In the procedure of the division where is aimed at inherited property as an inclusive one and co-inheritors who have various relations with their inheritee, it is likely that there will be the disputes about the prerequisites of the adjudication of the division among the co-inheritors. If the matter which becomes the prerequisite for the adjudication of the division has the nature of a right or a juristic relation, the co-inheritors are afforded the right to opportunity to settle the disputes about it by litigation in connection with the constitutional right of access to courts. In investigating whether or not it is legal to bring an action for confirmation of the prerequisites of the adjudication of the division, we should consider the eligibility to be the objection of the lawsuit for confirmation and the interest of confirmation. If the lawsuit for confirmation of them is lawful, the whole co-ownership relations are the object of this action and the result of such a lawsuit is to be unitedly decided on all co-inheritors. Therefore all co-inheritors should become parties to the lawsuit.