상속재산분할협의와 단순승인

• 영문명: A Study on Partition of Inherited Property by Agreement as an Absolute Acceptance in Succession
• 발행기관: 한국가족법학회
• 저자명: 윤부찬(Bu-Chan Yoon)
• 간행물 정보: 『가족법연구』家族法硏究 第20卷 1號, 415~437쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.03.01

영문 초록

  This paper deals with the nature of partition of inherited property by agreement and absolute acceptance in Korea. Article 1019(1) of the Korea Civil Code provides that an inheritor to property may, within three months after he is informed of the commencement of an inheritance, effect an acceptance, absolute or qualified, or a renunciation. If an inheritor effects an absolute acceptance, he shall succeed without limitation on the rights and duties of the inheritee. According to Article 1026, there are the three causes of absolute acceptance by law. Any of the following exists, an inheritor shall be deemed to have effected an absolute acceptance; 1. If an inheritor has taken an act of disposition with regard to the inherited property, 2. If an inheritor has failed to effect either a qualified acceptance or a renunciation within the period mentioned in Article 1019 (1), and 3. If an inheritor, after having effected a qualified acceptance or a renunciation, has concealed or fraudulently consumed, or failed intentionally to enter in the inventory, the inherited property.
  The Korea Supreme Court held that it constitute an act of disposition with regard to the inherited property that co-inheritors effect the partition of the inherited property by their agreement. So, once the inherited property is divided by agreement after commencement of inheritance, absolute acceptance is effected by law(Korean Civil Code Art 1026(1)). According to the Article 1024(1), acceptance of inheritance may not be revoked even within the period, -three months after he is informed of the commencement of an inheritance-, mentioned in Article 1019(1). In this case, the plaintiff argued that the agreement of partition of the inherited property was not an act of disposition of the inherited property, on the ground that co-inheritor did not dispose inherited property but just arrived at an agreement to divide inherited property.
  This paper agree with the conclusion of the Supreme Court but not it"s grounds. The Article providing absolute acceptance by law is applied to the plaintiff as long as the agreement to partition inherited property is an act of disposition. This paper point out that the agreement is entitled to the cause of absolute acceptance not because the nature of the agreement is the act of disposition, but because the intention of absolute acceptance is made clear by the agreement of partition on inheritance property between co-inheritors.

목차

Ⅰ. 서론
Ⅱ. 상속재산분할과 단순승인의 본질
Ⅲ. 상속재산분할 협의의 제1026조 제1호의 처분행위성 해당 여부
Ⅳ. 협의분할의 무효취소와 단순승인의 효력
Ⅴ. 결론
《참고문헌》
영어 초록

키워드

단순승인 협의분할 상속재산의 처분행위 상속재산의 분할 absolute acceptance partition by agreement division by agreement partition of inherited property by agreement