상속재산파산의 활성화 논의에 대한 단상 - 한정승인 및 재산분리와의 비교를 겸하여 -

There are the Bankruptcy of the inherited property under the Debtor Rehabilitation and Bankruptcy Act(‘DRBA’), the heir’s qualified acceptance of succession and separation of the inherited property under the Civil Act in the Republic of Korea. They are all systems that have the function of liquidating the inherited debt based on the inherited property. Each of them is a separate system, but they are closely related to each other for function and purpose, and these characteristics are also reflected in the rules on DRBA. Bankruptcy of the inherited property has the characteristic of being the most strict and fair liquidation procedure, but despite the advantages of the system, it has not been widely used in the past in practice. Under our inheritance legislation which is based on comprehensive succession as prescribed by law, the bankruptcy of the inherited property needs to be positioned as the basic procedure for the liquidation of the inherited debt. In the case of bankruptcy of the inherited property, since all assets constitute a bankruptcy foundation and the trustee appointed by the court has the authority to manage and dispose of the bankruptcy foundation, it is possible to prevent the heir from arbitrarily disposing of the inherited property. Fair repayment and liquidation are guaranteed even if the scale of the inherited property and debt is large and the relationship of rights is complex and diverse. The heir’s burden of his or her carrying out the liquidation procedure can be relieved, and the inheritance obligee can be more reliable in the liquidation procedure. In order to publicize and revitalize the utility of bankruptcy of the inherited property, it is necessary to examine legal issues, legal interpretation and application examples that may be problematic, while also seeking legislative solutions. In my opinion, it is reasonable to unify the legal system for the liquidation of the inherited debt into bankruptcy of the inherited property. It is necessary to admit a simpler procedure for bankruptcy of the inherited property under certain conditions so that it can substantially replace the heir’s qualified acceptance of succession or separation of the inherited property. In addition, the court must change its own position that it interprets the Article 346 on DRBA overly formal. Also a number of regulations about bankruptcy of the inherited property etc. under DRBA are needed to be regulated in one section.