피상속인의 공법상 의무에 대한 상속인 승계 여부 및 입법상 개선방향 - 권리 승계가 없는 공법상 금전 급부의무를 중심으로 -

There are not clear succession regulations applied to a successor in the cases where a person having an obligation in public law is dead, except the regulations about tax and administrative fine. Denial of the succession is not reasonable, because it results in the inheritance by the successor the properties that would have been consumed by the predecessor in compliance with the obligations in public law unless the predecessor had died. Moreover, a successor should succeed the obligations universally according to Article 1005 of the Civil Act, and Article 10, Paragraph 1 of the Administrative Procedures Act stipulates that a successor due to the death of a concerned party, etc. shall succeed to the status of such a concerned party. Therefore, it is reasonable that the obligation in public law is succeeded. However, obligations of a personal nature may not be succeeded. Although a successor should succeed and comply with the obligations in public law, this does not mean that the successor should bear the liability related to the practices by the predecessor, who is an other person. A successor complies with the predecessor’s obligations in public law related to the predecessor’s properties that should be attributed to the administrative authority, in replacement of the predecessor as an administrator of the inherited property, because the predecessor is unable to comply with the obligations in public law due to the death. Therefore, the predecessor’s obligations in public law carried out by the successor is limited to the inherited property, and may not infringe the successor’s own property For the obligations in public law to be succeeded by the successor, the obligations in public law should be imposed to the predecessor. If the disposition has been issued to the predecessor, there is no controversy. A problem is raised when there is only an abstract liability due to the infringement of the obligations in public law. In this case, the abstract liability may be reasonably succeeded, because the obligations in public law would have been imposed to the predecessor and the predecessor’s property would have been used to the compliance with the obligations if the predecessor had not been dead. However, the remedy against the infringement of the rights may hardly be provided to the successor, because the infringement is not an act by the successor. Therefore, in this case, the burden of proof about the disposition legality, born by the administrative authority, should be as clearly as removing any reasonable doubt from the judiciary, not just a prima facie proof that is reasonably convinced as described in the precedent. In addition, in the absence of intention or gross negligence on by the successor, the counting should be from the date when the successor learns about the disposition. The current laws and regulations are not sufficient with regard to the succession of the obligations in public law by a successor, except tax and administrative fine. The ground for the amendment may be included in the Basic Act of Administration of which enactment is currently discussed. At present, the best way may be to clarify Article 10 of the Administrative Procedures Act through amendment.