한정승인, 재산분리, 상속재산의 파산에 관한 입법론 －비교법의 관점에서－

In this article, I reviewed the legislation on the heir’s qualified acceptance of succession, separation of inherited property, bankruptcy procedure of inherited property based on the comparative studies(Germany, France, Switzerland, Austria, Canada Quebec, Japan). The current Korean system has the following problems. ① It is difficult for the heir to identify the inheritance debt before he or she chooses whether or not to inherit and how to inherit. ② There are not so many types of the inheritance that the heir can freely choose according to his or her preferences. ③ The separation of the inherited property and the heir’s property is not symmetrical and thorough. ④ The liquidation of inherited property according to the heir’s qualified acceptance of succession has many problems both in terms of efficiency and equity. In order to solve these problems, I proposed the following amendments. First, it is desirable to create the public inventory system to help the heir identify the inheritance debt before choosing the inheritance form. This system can also increase the heir’s options. Second, we need to integrate the heir’s qualified acceptance of succession and the separation of inherited property to create the new liquidation system of inherited property. This is a system in which the third party liquidator separates and liquidates the inherited property only when the inherited property is not over-indebted. Third, if the inherited property is over-indebted, the liquidation process of the inherited property should be unified into the bankruptcy procedure. Fourth, the deficiencies of the current bankruptcy procedure of the inherited property should be improved. Some of these improvements include giving the creditors of the heir the right to file for bankruptcy, establishing a simple and inexpensive bankruptcy procedure, and recognizing the effect of separation of two properties (the inherited property and the heir’s property) fully and automatically. Fifth, during the period in which the heir can exercise his option about inheritance, the inheritance creditors should be prohibited from acquiring the execution title against the heir, and the execution of the heir’s creditors should also be prohibited.