상속에 있어서 미성년자 보호

Abstract

The issue of protecting minor heirs in inheritance is an important part of child protection because the result of such legal actions may change their lives forever. Improvement measures based on root-cause analysis as well as thoroughly-prepared legal system are necessary to prevent young victims of insufficient legal protection in inheritance. The civil law of Republic of Korea protects the minors through persons with parental authority or guardianship based on the legal guardian system. However, regulations on acting against the interest of the minor and on abuse of rights created to limit legal parental authority cannot provide sufficient control. A more proactive measure to protect the minors in parental custody must take place. Meanwhile, although an amendment was adopted for the guardianship system, it is still insufficient to protect the minors as the amendment focuses on implementing guardianship for the legal aged. All in all, control over parental custody or guardianship, such as custody control by the Family Court or instituting supervision over guardians, must be strengthened for minor protection. This, however, cannot be the fundamental solution. Too much supervision or control over custodians or guardians may cause inconveniences or burden in acting out their duties, and no matter how much the Family Court strengthens its function, there still will be limitations in getting involved in actual situations. Likewise, legal supervision over the person with parental authority is weak and is unable to suffice as a preventive measure for minor protection. Given such a situation, remedy can only remain secondary in terms of priority and the legal capacity to consider the hardship and suffering of the minor until he/she is remedied is obsolete. Even if remedy may be possible later on, unlike other legal actions, the problems related to inheritance cause irrepairable damages to minors’ lives in terms of impact on their childhood and ensuing consequences in life. Especially, under the inheritance system of Korea which is based on simple acceptance system, the danger a minor may fall into in case he/she cannot be protected by the legal guardian system is significant. Therefore, as a fundamental measure, an exception provision for minors should be legislated in the simple acceptance system since the system may yield results too harsh for minors to bear. It is recommended that after expiration of the decision-making time period, the law should favor limited acceptance for the minor heirs. And improvement should be made so that a supervisory organization oversees the acceptance or refusal of succession to assure no disadvantage is caused to the minor by the custodian or the guardian and that such an acceptance or refusal of succession is made in a clear statement.