配偶者의 財産相續上 地位와 그 强化

A Study on Spouse s Position and It s Improvement at Inheritance of Property

Mankind became ownership of property and subject of right and duty as value on property was granted. However, what should we do with the ownership and the right of duty that belong to the mankind who is the subject of right and duty? Before the modern age, regardless of eastern and western culture, succession was mainly carried out by blood relation. Also, in the principle of heir’s inheritance of blood relationship focusing on the son, it was natural for the spouse to be excluded from the inheritance. However, by excluding the spouse, an issue called survival spouse, particularly a widow’s livelihood protection, occurred. Historically, the right of succession was only acknowledged for women when there was no man heir. Although the women received the inheritance, the inherited property from marriage was mostly the possession of her husband. Hence, it was a rare situation for women to possess her property. Therefore, it was a big problem of who should take responsibility of the livelihood of a widow without any financial capacity. As an alternative plan for such issue, inherited property was guaranteed for a part of the livelihood and this was the beginning of the spouse’s inheritance. Nevertheless, this form of spouse’s inheritance was more of a payment to maintain a living rather than the meaning of the word property inheritance. Strictly speaking, it should not be expressed as property inheritance. After this, the acquisition of usufruct of property inheritance was recognized as a developed form of payment of maintenance. However, problems such as restraint of trade occurred as usufruct of property inheritance were recognized. Also, as participation of women became possible, they began to hold financial abilities and as the family structure changed from patriarchal extended family to nuclear family composed by spouse and minor children, the position of surviving spouse in property inheritance changed. At last, not a usufruct but an absolute right was recognized to the surviving spouse. Through looking at this flow, we can see that the position of the surviving spouse altered from support attitude to usufructuary attitude and then to divided attitude. Furthermore, it is a modern trend of recognizing the position of the surviving spouse as superior compared to natural heirs. Looking at such circumstances, the significance of today’s spouse’s inheritance system is conjugal property as the result of the support of surviving spouse and the death of the other spouse. Present civil law acknowledges surviving spouse’s right of succession (civil cod article 1003) and fixed a share of adding 50% more from the co‐heritor’s inherited share as the spouse’s inherited share (civil code article 1009). According to civil code, successor who the surviving spouse co-inherits is a lineal descendant or a lineal ascendant and does not co-inherit with the siblings of the descendent. Such attitude seems like an intention to favor intimacy of the descendent and human relation between the families formed through marriage over blood relation. Therefore, it is an obvious result to prefer to inherit property to the surviving spouse who has depended on each other through conjugal association of life. However, the 50% addition of the share will be evaluated differently according to long and short conjugal term. In other words, when the period of marriage is short, adding 50% share from co-heritor’s inherited share will be a benefit to the surviving spouse. But when the period of marriage is long, the right of the surviving spouse might not be adequately reflected. In the case of the former, settlement of interest is impossible but in the case of the latter, it can be protected by current contributory portion system. Especially at the March 31st 2005 civ