상속포기의 효과와 대습상속 - 대법원 2017. 1. 12. 선고 2014다39824 판결에 대한 검토를 중심으로 -

Abstract

Does the renunciation of inheritance influence the succession by representation? This is a pressing matter of discussion when the renunciation of inheritance shares the same purpose as the inheritance by representation. The original decision and the supreme court decision took different stances in judicial judgment on this matter. Whether the respective purposes are identical or not, if a person renouncing the original, namely the first inheritance, has not expressed his will of qualified acceptance or renunciation of inheritance within a period for acceptance, the supreme court decision is considered lawfully valid as an absolute acceptance by law under the Civil Act (§1026, No. 2). Despite the principle of absolute acceptance for inheritance in the Civil Act, the Korean Civil Law endows heirs an opportunity of qualified acceptance or renunciation of inheritance, and that inheritance and succession by representation respectively have different institutional purposes. Therefore, the supreme court decision is considered justifiable in the viewpoint of judicial logic. However, in the interpretation and application of the law, the supreme court decision needs to be theoretically reviewed in depth both in terms of legal interpretation and legislative theory, if its application is not restricted to keep legal stability and the agenda is examined for its concrete validity. The realization of its concrete validity should be emphasized with this agenda, in the interpretation and application of the law in particular. However, even in this matter, the idea of concrete validity should not be emphasized unrestrictedly. Rather, it should be emphasized to the extent that it can be incorporated within an extensive frame of harmony between legal stability and concrete validity.