胎兒의 權利能力

A Study on Legal Capacity of Unborn Child

The Korean Civil Code adopting the doctrine of individual protection relating to legal protecton of unborn child's interests exceptionally and restrictively recognizes the unborn child's legal capacity. However, there have been conflict between the theory of condition precedent and condition subsequent regards to the legal nature of it because the Code simply stipulates "~be deemed to have been already born." Moreover, the case law from the Korean Supreme Court has also been inconsistent. By the way, because the legislative intent of the Koren Civil Code which exceptionally and restrictively recognizes the unborn child's legal capacity is to protect the unborn child, the theory of condition subsequent which puts emphasis on the protection of the unborn child's intersts seems to be reasonable. However, the theory complexifies legal relationships. Thus, the theory of condition precedent is more reasonable under the construction of the Korean Civil Code and the reasons for that are as follows. First, the Korean Civil Code does not recgnize organs that protect the unborn child's interests such as legal guardian or amministrator of property. Legislatively, it is desirable to appoint administrator of property for unborn child's interests under the supervision of the Family Court in order to manage the unborn child's property. Second, although there is no difference in shares of statutory inheritance between male and female, it will be evident after the delivery whether the child is twins or triplets. Moreover, because there could be the case of stillbirth, we should suspend the division of inherited property until the delivery. Third and the last, even the biological mother does sometimes not know when she was pregnant. In this case, if the mother who does not know the pregnancy excludes the unborn child in dividing the inherited property, the process would be complicated because the unborn child should request for the recovery of inheritance after his/her birth. Moreover, there would be the case that the unborn child is biologically not the husband's child. Nevertheless, under the theory of condition subsequent, the unborn child who is not legitmate child inherit the property so that the true heir should request for the recovery of inheritance.