프랑스민법상 채권·채무의 상속과 분할

Upon the commencement of succession, an heir takes over all the rights and duties pertaining to the property of the decedent(Art. 1005 CivC). The Universal succession of Article 1005 CivC encompasses liabilities such as debts. According to Korean case law, the heirs can claim for damages for the decedent’s death against the tortfeasor. The heirs inherit the claim of damages of the deceased that arose in the moment of death. Moreover, the Supreme Court approves the inheritability of compensations for pain and suffering in general. * Professor, School of Law, Chungbuk National University Similar to the Korean heirs, the French heirs, succeed not only to the estate, but also are thought of as continuing the person of the deceased. The heir, once he accepts the estate or his hare, becomes liable for the payment of all the debts of the estate even if such debts are in excess of the assets. If within 5 months he/she discovers a large debt, a legal application may be made for him/her to be released from all or part of this debt if both the following conditions are met : 1) the heir had legitimate reasons to be unaware of the existence of this debt when accepting the succession; 2) payment of this debt would be liable to seriously diminish his/her own estate. A French heir who is a universal successor whether by testacy or intestacy, has the right to fully accept or renounce the succession, or accept the succession up to the value of the net assets. If the heir accepts the succession to the amount of the net assets, he/she must file a declaration at the office of the chief clerk of the Regional Court covering the place of domicile of the deceased. This declaration is publicized nationally. An inventory must be filed within two months after the declaration and the creditors must claim their debt. Heirs will be liable for the estate’s debts only up to the value of the assets received by them. That there may be more than one universal successor does not change the concept of the succession devolving as a whole. Each heir becomes possessed of an undivided portion of the whole, which makes him a co-owner of the whole estate. The heir is only required to settle debts to his/her entitlements to the inheritance. For example, if he/she is entitled to one quarter of the inheritance, he/she will only be required to pay one quarter of the debts of the deceased. The Code provides for eventual partition(partage). If the parties cannot agree to partition, a judicial partition(partage judiciaire) is necessary. This is done by a notary named by the court. The Code sets forth rules for the distribution of the succession which the notary must follow. The assets finally assigned to a coheir are deemed retroactively to have been his property from the decedent’s death.