상속개시 전 상속포기계약의 해석에 관한 소고

The interpretation of inheritance renunciation contracts concluded prior to the commencement of inheritance proceedings

Under the article 1005 of Korean Civil Code, the deceased’s rights and obligations are transferred to heirs at the time of the commencement of inheritance. It means that the heir must be liable for all duties and debts inherited at first, thereby might be less favorable to heirs. To protect them, It is stipulated that heirs can considerate within 3 months after the decedent’s death, whether he/she will renunciate or accept the succession under the article 1019 of Korean Civil Code. As a general rule, a proceeding for settlement and distribution of inheritance estate starts at the time of the commencement of succession. However, it may occasionally be negotiated for the inherited property between predecessor and successor or among successors themselves beforehand. Usually, this kind of discussions for the estate of inheritance is led to the agreement for division of inherited estate after the deceased’s death. Then, how it comes if a agreement is concluded definitely prior to the commencement of inheritance? The contracting party(heir) will give up the inheritance according to the contract content ordinarily. But, he/she may sometimes change his/her mind and claim the inheritance after the decedent’s death. The question is how to treat the contracts concluded prior to the commencement of inheritance proceedings. In this paper, I attempted to make a dissenting opinion on the conclusion that a contract on the renunciation of inheritance concluded before the commencement of inheritance is void under the proposition that “the renunciation must be conducted after the inheritance has been initiated”, as suggested by precedents and general legal theories. There are no major drawbacks on the proposition itself under the existing provisions. However, It is implausible to generalize a contractual relation be controlled by one single party, thereby disfavoring heirs. I understand the worries of precedents and general legal theories that this kind of contracts may lead to the revival of old custom like a inequality in inheritance. But, the primary concern should be whether he/she entered into the contract on his/her own volition. Times have changed and people have come to consider their right on a inheritance property more important than before. The contract will be voidable, of course, if a manifestation of assent is obtained under coercion or pressure which constitutes duress under general provisions of the Civil Code. I also reviewed the effect of the agreement on the renunciation of inheritance before its initiation. Through a careful examination, in my view, I determined that such an agreement would have a binding force. Under the regulations in force, it seems hard to allow a compulsory performance of the contract. However, a claim for damages can be granted. Additionally, it may be possible that the heir’s changing mind after decedent’s death will be abuse of his/her right according to circumstances.