채무를 상속한 의사무능력자 및 그의 상속인 보호에 관한 고찰 －서울중앙지방법원 2010.10.26. 선고 2010나7033 판결(확정)을 중심으로－

Abstract

The Korean Civil Law enacts the provisions of ‘capacity of enjoyment of rights’ and ‘legal capacity’ in express terms, but does not enact ‘mental capacity’. Therefore, there is no way of protecting mental incompetents who do legal acts but to rely on legal interpretation. We can see that both legal theory and precedent protect mental incompetents through recognizing the concept of mental capacity and interpreting juristic acts of mental incompetents as null and void. We also see the other way of protection which is legal guardians as legal representatives manage the property of mental incompetents and exercise the right of representation after they are declared incompetent. However, in reality, it is very low to use the incompetent system because it has to take annoyed process such as being declared by courts and the declaration fact is posted on the register of family relationship. Therefore, there is no concrete and individual way of protection in the case of that the incompetents without being declared should do certain legal acts positively. Especially, it would be possible that the incompetents could be protected legally and be released from inherited obligations by giving up the inheritance or making a qualified acceptance if they inherit liabilities on their own, but the concrete methods still matter. In this case, the first inheritor who inherited debts passed away without giving up the inheritance or making a qualified acceptance in lack of mental capacity state. On the other hand, the second heir who inherited the first inheritor refuses succession or makes a qualified acceptance. However, the problem is that the Korean Civil Law does not any provisions for regulating this situation. In this paper, I suggest the new legislative measures to solve the problem after I first review which provisions of the Korean Civil Law could be applied analogically.