현행법상 배우자 재산상속제도의 개선방안에 관하여

Entering the 21st century, today’s family structure has changed into a nuclear family which is focused around the married couples. That is the social trend which is triggered by the fact that young people don’t support their parents anymore. Therefore the inheritance is mostly made up of the assets acquired by joint efforts through divided roles between married couples during their marriage. From this point of view, the theory of the modern inheritance system is entering into espousal inheritance oriented system away from the bloodline family oriented inheritance system. According to the current inheritance legislation, when a married couple put an end to their marriage including one’s death, the acquired assets of the couple through into effort of the couple during their marriage is divided among heirs as inheritance by the inheritance legislation without any prior liquidation proceedings based upon a married couple asset system. Therefore the surviving spouse’s his or her potential stake-inherit fortune is invaded. In addition, due to the civil law which regulates the inheritance equity, the surviving souse’s inheritance equity is only added one half of the other co-heirs, which makes the surviving spouse’s equity very instable according to the number of the co-heirs. This side effect is made by the fact that our inheritance system is staying in the old time family oriented inheritance system. The gender equality among the married couple should be respected in accordance with the theory of the equality of the married couple. Even if the title of the asset is put on the husband’s name even for the assets formed during marriage through joint efforts by married couple, the title of the asset should be presumed as the joint title of the married couple. Because the surviving spouse’s potential stake-inherit fortune should be regarded as an active role to form their joint fortune. The obligation to prove to alter the presumption should be under the person who wants to challenge it. The active legislation to approve the surviving spouse’s potential stake-inherit fortune which activated the formation of the married couple’s joint assets is deeply demanded. By this activity the husband’s labor and the wife’s support can be evaluated equally under the gender equality theory. By this activity we can correspond to the Constitution, article 36, paragraph 1 “Individual dignity and an equality of the genders on the basis of marriage and family life should be established, and the country must ensure this right.”