민법 제1019조 제3항과 고려기간 내의 주의의무 (The article 1019 paragraph 3 of Korean Civil Code and the duty of care within a period for due consideration in succession)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 24권 / 3호 / 393 ~ 418페이지
· 저자명 : 류일현, 이승우

초록

Under the article 1019 (1) of Korean Civil Code, an heir can considerate within 3 months after the decedent’ death, whether he/she will accept or renunciate the succession. When the period passes, it is regarded as the heir absolutely accepts the inheritance in accordance with the subparagraph 2 of article 1026. Therefore, it has always been said that the law was more favorable for creditors than successors. And the subparagraph 2 of article 1026 was given a decision of the Constitution Court in 1998, which held that it was against the Constitution. As a result, the Korean Civil Code was amended in 2002.
The paragraph 3 of article 1019 was newly inserted by the amendment of Civil Code in 2002. It provides that “Notwithstanding the provisions of paragraph 1, where an inheritor has made an absolute acceptance (including the case deemed to have made an absolute acceptance under subparagraphs 1 and 2 of Article 1026) without knowing the fact that his inherited liability exceeds his inherited property within the period under paragraph 1 without any gross negligence, a qualified acceptance may be made within 3 months from the date on which he knew such fact.”.
This study is focussing on the terms of “without any gross negligence”. Because “negligence” is the failure to exercise some duty of care, we can come to know that an heir is under ‘duty’ within a period for due consideration of the article 1 under the article 1019 paragraph 3. The question is what kind of activities does the duty of care ask to exercise. We can’t find any provisions of Civil Code that state a meaning of ‘(gross) negligence’ of the article 1019 (3).
Regarding the meaning of negligence of the article 1019 paragraph 3, some say it’s a breach of duty to manage the inherited property, while others say it’s a breach of duty to search it. We can get a conclusion that these theories are not reasonable, after reviewing each opinion and its grounds. Finally, this study propose that the negligence of the article 1019 (3) should be understood as a failure of duty to perceive the state of inherited property during the period for due consideration in succession.

영어초록

Under the article 1019 (1) of Korean Civil Code, an heir can considerate within 3 months after the decedent’ death, whether he/she will accept or renunciate the succession. When the period passes, it is regarded as the heir absolutely accepts the inheritance in accordance with the subparagraph 2 of article 1026. Therefore, it has always been said that the law was more favorable for creditors than successors. And the subparagraph 2 of article 1026 was given a decision of the Constitution Court in 1998, which held that it was against the Constitution. As a result, the Korean Civil Code was amended in 2002.
The paragraph 3 of article 1019 was newly inserted by the amendment of Civil Code in 2002. It provides that “Notwithstanding the provisions of paragraph 1, where an inheritor has made an absolute acceptance (including the case deemed to have made an absolute acceptance under subparagraphs 1 and 2 of Article 1026) without knowing the fact that his inherited liability exceeds his inherited property within the period under paragraph 1 without any gross negligence, a qualified acceptance may be made within 3 months from the date on which he knew such fact.”.
This study is focussing on the terms of “without any gross negligence”. Because “negligence” is the failure to exercise some duty of care, we can come to know that an heir is under ‘duty’ within a period for due consideration of the article 1 under the article 1019 paragraph 3. The question is what kind of activities does the duty of care ask to exercise. We can’t find any provisions of Civil Code that state a meaning of ‘(gross) negligence’ of the article 1019 (3).
Regarding the meaning of negligence of the article 1019 paragraph 3, some say it’s a breach of duty to manage the inherited property, while others say it’s a breach of duty to search it. We can get a conclusion that these theories are not reasonable, after reviewing each opinion and its grounds. Finally, this study propose that the negligence of the article 1019 (3) should be understood as a failure of duty to perceive the state of inherited property during the period for due consideration in succession.

참고자료

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