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논문 기본 정보

자료유형
학술저널
저자정보
저널정보
한국가족법학회 가족법연구 가족법연구 제34권 제1호
발행연도
2020.1
수록면
159 - 200 (42page)

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초록· 키워드

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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. His or her share in inheritance does not mean the statutory share in inheritance, but the specific share in inheritance considering the special profit of co-inheritors and his or her contribution to the inheritance. If the other co-inheritors retain the divided inherited property, the value of the inherited property shall be calculated based on the time of the affiliation or the final judgment. If the other co-inheritors disposed the inherited property, the value shall be calculated by converting the value at the time of disposal into the value at the time of affiliation or final judgment. Fruits arising from the inherited property until the division(or disposal) are not subject to the division of the inheritance, and they are therefore not subject to the claim for value payment of Article 1014. Fruits arising from the inherited property after the division shall belong to the co-inheritor who obtained that property by the division and are not subject to the claim for value payment of Article 1014. If there are several co-inheritors who have divided or disposed of the inherited property before a co-inheritor is added by affiliation or final judgment, they are obliged to pay the divided value in proportions. The ratio of division shall be based on the ratio of the value of the inherited property obtained by the division or disposal, exceeding their specific share in inheritance. The period of exercise of the claim for value payment of Article 1014 depends on the legal nature of the claim. The claim of a co-inheritor by affiliation is a kind of the claim for unjust enrichment, not the claim for recovery of inheritance. Therefore, the extinctive prescription period(10 years) of the claim for unjust enrichment, not the exercise period of the claim for recovery of inheritance(Article 999), shall apply to the claim. The legal nature of the claim of a co-inheritor by a final judgment is a kind of the claim for recovery of inheritance. Therefore, the exercise period of the claim for recovery of inheritance(Article 999) shall apply to the claim.
#Article 1014 #Affiliation #Retrospective Effect of Affiliation #Claim for Value Payment #Division of Inherited Property #Claim for Recovery of Inheritance

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참고문헌 신청
곽윤직 / 2004 / 상속법 개정판 / 박영사 google schola 곽윤직 / 2013 / 민법총칙 / 박영사 google schola 김용한 / 2003 / 친족상속법 / 박영사 google schola 김주수 / 2019 / 친족상속법 / 법문사 google schola 김주수 / 2010 / 주석민법 상속(1) / 한국사법행정학회 google schola

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