하단의 논문은 서울대학교 아시아태평양법연구소 아시아태평양법 국제교류기금의 학술연구비 지원을 받은 학술논문입니다.
이동진, "민법 제1026조 제1호의 법정단순승인", 『家族法硏究』, Vol.31, No.1 (2017), pp. 381-404.
The Constituted Acceptance of Succession of Article 1026, section 1 of Civil Code Supreme Court Decision on Dec. 29. 2016, Case no. 2013Da73520
Article 1026, section 1 of the Civil Code prescribes that the act of the successor to dispose the property that belongs to the estate shall be deemed to be an acceptance of succession. According to the case law, this provision applies only to the disposition of the estate made prior to the renunciation. If a disposition of the estate is made after the renunciation, article 1026, section 3 of the Civil Code governs, which prescribes a presumed 1st degree successor who renounced the succession but consumed the estate unjustifiably shall be regarded as accepted the succession. As the latter is stricter than the former in terms of requirements as well as effects, it is important to determine the divide line between both constituted acceptances. Recently, the Supreme Court ruled in a decision rendered on December 29. 2016 (case no.2013Da73520) that not article 1026, section 3 but article 1026, section 1 shall govern the cases where the presumed successor filed a renunciation of succession and disposed the estate before he was notified from the family court that his renunciation was processed. In the case before the court, a widow disposed her deceased husband’s cars and paid some of her deceased husband’s still open debt with the proceed thereof, and afterwards, another creditor of the deceased husband’s sued against the widow maintaining that her renunciation was invalid because she disposed the estate. The court ruled against the widow based on the reasoning that renunciation takes its effect only on the notification of the family court so that there exists no renunciation before notification of the family court. Considering the fact that article 1026, section 1 is a form of implied acceptance and thus should be based on the presumed intent of the successor to accept the succession, however, this ruling is not agreeable. In this case, the widow manifested her will not to accept the succession so that article 1026, section 1 does not apply, while her disposition of the cars does not make unjustifiable consumption of the estate in the meaning of article 1026, section 3. Not only the holding of this case but also the conclusion thereof was wrong.
법정단순승인, 상속재산의 처분, 상속재산의 부정소비, 상속인의 추정적 의사 constituted acceptance of succession, disposition of the estate, unjustifiable consumption of the estate, presumed intent of the successor
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