대습상속제도의 입법론에 관한 제안 (A legislative suggestion on the Succession by Representation)

서지정보

· 발행기관 : 전북대학교 부설법학연구소
· 수록지 정보 : 법학연구 / 36권 / 215 ~ 251페이지
· 저자명 : 안영하

초록

대습상속이란 피상속인의 상속인이 될 직계비속 또는 형제자매가 상속개시 이전에 사망하거나 결격자가 되어 상속권을 상실하게 된 경우, 그 직계비속 또는 그 배우자가 사망하거나 결격자가 된 者의 순위에 갈음하여 상속인이 되는 것을 말한다(민법 제1001조, 제1003조 제2항). 그런데 대습상속제도를 운용하는데 있어서 몇가지 문제점이 나타나고 있다. 현행 법규정의 미비로 인한 해석상의 난점이 나타나기도 하지만, 무엇보다도 인척상속의 형태인 배우자의 대습상속을 인정함으로써 발생하는 문제점도 있다.
이에 본 논문에서는 각각의 논점과 관련된 해석론 및 입법론을 간단히 정리한 후 대습상속제도의 전체적인 입법론을 제시하기로 한다.

영어초록

The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. Succession by Representation is generally approved in most countries according to the idea of equity or expecting of succession. If an expected heir has not died nor has not become disqualified before the commencement of succession, he would have inherited the inherited property, and his lineal descendants also would have inherited him. That is Succession has been practiced among the family members, and it has been based on the inclinations for handing over their properties(personal property and real property) to either their close relatives or, at least someone who has consanguinity.


In korea, about the succession by Representation, there are Article 1001, 1003 (2).


Article 1001 (Inheritance by Representation)Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor.


About the succession by Representation, there is Article 1001

Article 1001 (Inheritance by Representation)Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor.
The man gets the rights of Representation is generally the lineal descent of the expected heirs. Succession law is one of the part that remains the national character.
Our Civil Law stipulates the representation by the spouse of the deceased or disqualified person. that is Article 1003 Paragraph 2.
Article 1003 (Order of Inheritance of Spouse)(2) In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor.
This legislation is the only one in the world in view of the comparative law.
Succession by Representation has some problems. The purpose of this paper is compensate the defect.

참고자료

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