대습상속의 요건에 관한 소고

The ground which recognizes a succession by representation is right in ideology of equity, is in order to correspond even in ground of the modern succession which is a life guarantee of the successor. The succession by representation includes the continent legal system nation and american legal system nation and is recognizing from all countries. Our country the succession by representation from the Joseon Dynasty period after that there is a possibility of seeking. Like this succession by representation about civil law provision from when establishing until currently that provision so is simple. The contents also the interpretation of the part which is various interpretation possibility and call of condolence between is not clearly. According to Korean civil law, Article 1001 (Inheritance by Representation) where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor, Article 1003 (Order of Inheritance of Spouse) (2) In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor. Like this the situation and the unit where the occurrence possibility of succession increases about succession by representation is caused by with provision interpretation coat various problem point and even until currently is a field where the possession of criticism is many. The problem of succession by representation is thought one in the system where the legal sentiment of law affection and the common person collides. The family of actuality from form of the large family changes in the extended family and small family is going. Like this tendency with the fact that will be magnified. I consider like this various element and thinks, that for a rational solution the unit of the spouse must restrict succession by representation, thinks that must reform a civil law.