상속법의 자화상과 미래상 - 한국 민법 시행 50주년을 기념하여 - (The Sketch of the Here and the Hereafter of Korean Inheritance Law)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 52권 / 599 ~ 631페이지
· 저자명 : 현소혜

초록

There has been a remarkable development in Korean Inheritance Law during past 50 years. But we are still faced with some urgent problems in this field. First of all, it should be examined whether customary law on inheritance before the enactment of Korean Civil Act was real, or whether it is not unconstitutuional, and,if it is, should be decided with what invalid customary law would be replaced and which government organization will charge this task. Secondly, we need to pay attention to the number of cases on inheritance which has come to an end by conciliation. It means the parties concerned do not realize their legal shares of inheritance in too many cases, neither the court. This results from the uncertainty of calculation-method of the concrete shares of inheritors reflecting special beneficiary or contributory portion. It has a bad influence on proceedings of legal preserve of inheritance and of obligee's revocation. Thirdly, it should be more emphasized that the Korean Inheritance Law has a character as a part of Family Law. It will help limit for third parties like obligees to intervene the personal decision of co-inheritors such as renunciation of inheritance or determination of devision-method. It can be also helpful for legislators so as to urge them to propose new paradigm about matrimonial property institution and spouse-inheritance rights, because it provides the integrated view about the legal status of the divorced spouse and the widowed one.

영어초록

There has been a remarkable development in Korean Inheritance Law during past 50 years. But we are still faced with some urgent problems in this field. First of all, it should be examined whether customary law on inheritance before the enactment of Korean Civil Act was real, or whether it is not unconstitutuional, and,if it is, should be decided with what invalid customary law would be replaced and which government organization will charge this task. Secondly, we need to pay attention to the number of cases on inheritance which has come to an end by conciliation. It means the parties concerned do not realize their legal shares of inheritance in too many cases, neither the court. This results from the uncertainty of calculation-method of the concrete shares of inheritors reflecting special beneficiary or contributory portion. It has a bad influence on proceedings of legal preserve of inheritance and of obligee's revocation. Thirdly, it should be more emphasized that the Korean Inheritance Law has a character as a part of Family Law. It will help limit for third parties like obligees to intervene the personal decision of co-inheritors such as renunciation of inheritance or determination of devision-method. It can be also helpful for legislators so as to urge them to propose new paradigm about matrimonial property institution and spouse-inheritance rights, because it provides the integrated view about the legal status of the divorced spouse and the widowed one.

참고자료

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