‘부양의 의무가 있다’와 ‘특별히 부양하거나’라는 문언의 성질 차이 ―통설·판례의 방법론에 대한 비판과 부양기여 특별성의 판단기준 구체화―

Critical views : There is a difference in the way of interpretation between Sollen-Norm text and Sein(fact)-Aussage(statement) text. The Sein(fact)-Aussage(statement) text of “specially” in Article 1008-2(Contributory Portion) (1) is an indeterminate concept that requires a value judgment. In order to prevent arbitrary judgment of the courts, concrete work is required (based on specific and relative standards). Laws that can be quantitatively evaluated and the reality of social-economic transactions are firmly established. It is based on Kelsen’s theory. The regulation and interpretation of the obligation to mediate in Article 2057a of the German Civil Code(German BGB) and the bequest of care in Article 677 of the Austrian Civil Code(Austria BGB) are close to the judgment of “specially” in Article 1008-2(Contributory Portion) (1) based on the ‘specific and relative standards’ of the Critical views. We can see that the courts will follow the Critical views in the future. The court will show the most clearly (predictable) case type, “cohabiting and providing nursing the inheritee with a severe disease or disability for a long time”.