민법 제1014조 가액지급청구권

• 영문명: A Study on the Claim for Value Payment of Article 1014 of the Civil Code
• 발행기관: 한국가족법학회
• 저자명: 오종근(Chongkun Oh)
• 간행물 정보: 『가족법연구』家族法硏究 第34卷 1號, 159~200쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.03.31

영문 초록

Article 1014 of the Civil Code states, “Where a person who has become a co-inheritor by affiliation or by a final judgment after the commencement of the inheritance applies for the division of inherited property, he or she may, if other co-inheritors have already effected the division or other disposition, claim payment of the amount equivalent to his or her portion.” Article 1014 does not invalidate the effect of the division or other disposition of inherited property by other co-inheritors, in accordance with the provision of Article 860 restricting retrospective effect of affiliation on third parties. Furthermore, the imposition of a value payment obligation under Article 1014 to the other co-inheritors who have divided or disposed the inherited property before the affiliation or a final judgment is an exception to Articles 747 and 748, not an exception to Article 860. The legal nature of the claim for value payment of Article 1014 needs to be divided into the case where the claimant becomes ‘a co-inheritor by affiliation’ and the case where he or she becomes ‘a co-inheritor by a final judgment’. The former is based on the claim for unjust enrichment(Article 741), and the latter is based on the claim for recovery of inheritance(Article 999). The claimant of the claim for value payment of Article 1014 is the person who has become ‘a co-inheritor by affiliation or by a final judgment’ after the commencement of the inheritance. The person affiliated by the will of the inheritee is excluded. In the case where the inheritee is a mother, the person affiliated after mother s death is also excluded. A person who has become a co-inheritor by a final judgment means only a person who has obtained the status of a co-inheritor by a formative judgment, except those who have confirmed the status of a co-inheritor by a confirmation judgment. A co-inheritor who was unborn at the time of the death of the inheritee is also excluded. The other party to the claim for value payment of Article 1014 is any other co-inheritors who have already divided or disposed the inherited property before the addition of a co-inheritor by affiliation or final judgment. What is controversial is whether subordinates are included in the other party. The opinion which subordinates shall be also included asserts the application of analogies for the safety of transactions. However, denying the application of analogies does not seriously threaten the safety of the transaction. In accordance with the text of Article 1014, it is reasonable to exclude subordinates. Article 1014 applies when the other co-inheritors have already effected the division or other disposition before a co-inheritor is added by affiliation or final judgment. The ‘division’ in Article 1014 can be done both by agreement and by adjudication. There is an opinion that Article 1014 should be applied even if a division-agreement is established but not yet implemented, but it is not acceptable. The term ‘disposition’ in Article 1014 refers to cases in which the other co-inheritors jointly disposed of the inherited property or each co-inheritor disposed of his or her share in the individual inherited property. The assignment of his or her share in the entire inherited property to a third person (Article 1011) also corresponds to the ‘disposition’ of Article 1014. If the other co-inheritors are only obligated to dispose of the inherited property and have not yet had any act of disposition(transfer of rights) in accordance with its performance, it does not fall under the ‘disposition’ of Article 1014. The agreement to prohibit the division of the inherited property made by the other co-inheritors does not also fall under the ‘disposition’ of Article 1014. A co-inheritor by affiliation or final judgment may claim payment of the amount equivalent to his or her share in inheritance.....

목차

Ⅰ. 머리말

Ⅱ. 제1014조의 입법 취지―제860조와의 관계

Ⅲ. 제1014조 가액지급청구권의 법적 성질

Ⅳ. 제1014조 가액지급청구권의 요건

Ⅴ. 제1014조 가액지급청구권의 내용

Ⅵ. 결 론

키워드

제1014조 인지 인지의 소급효 가액지급청구권 상속재산분할 상속회복청구권 Article 1014 Affiliation Retrospective Effect of Affiliation Claim for Value Payment Division of Inherited Property Claim for Recovery of Inheritance