낙태와 상속결격에 관한 연구

With the recent constitutional discordance adjudication on the crime of abortion under the Criminal Act as a momentum, this article examined whether abortion can be recognized as a reason for ineligibility for inheritance under Article 1004, Subparagraph 1 of the Civil Act. First, in order for abortion to be recognized as a reason for ineligibility for inheritance, the fetus must be able to become an heir. In this regard, if the view of the conventional theory of condition regarding the fetus' capacity of enjoyment of rights is consistently applied, it can be concluded that abortion is not a reason for ineligibility for inheritance. That is, according to the theory of condition precedent, in case aborted, the fetus does not become an heir of the same or senior rank because the condition has not been fulfilled, and according to the theory of condition subsequent too, the fetus cannot become an heir of the same or senior rank because the fetus cannot acquire the capacity of enjoyment of rights or the capacity to inherit retrospectively since the condition subsequent was fulfilled by the abortion. However, when examining the right to claim damages due to an illegal act in cases where the fetus is recognized as having the capacity of enjoyment of rights, a conclusion that the perpetrator should compensate for the damage in cases where the fetus was born with the damaged body but is not required to compensate for any damage in cases where the fetus was born dead as its life was violated will be drawn. Since such a conclusion is not acceptable at all under the Constitution, it is unjust to interpret the fetus' capacity of enjoyment of rights in light of the theory of condition. Then, it should be also regarded that the capacity to inherit cannot be interpreted in light of the theory of condition, and it can be said to be clear that the fetus can become a heir if the fetus has the capacity to inherit as a fetus per se. Next, there is an argument that given that the crime of abortion is stipulated in Chapter 27 of the Criminal Act and the crime of murder is stipulated in Chapter 24 of the Criminal Act, the crime of abortion cannot be treated identically to the crime of murder, and therefore, abortion cannot be regarded to fall under ‘murder’ as a reason for ineligibility for inheritance. However, since the fetus in civil law is a being until it is completely exposed from the mother, while the object of the crime of abortion in Article 269 of the Criminal Act is only the being before the onset of labor pains, if the argument of the theory of denial is consistently applied, it will be concluded that the abortion of the being during delivery, which is not an object of the crime of abortion under the Criminal Act, becomes a reason for ineligibility for inheritance under the Civil Act and the abortion of the being before the onset of labor pains does not become a reason for ineligibility for inheritance so that the conclusion will be unjust. Therefore, it should be said that abortion also falls under murder as a reason for ineligibility for inheritance. Lastly, the recent constitutional discordance adjudication stated that the crime of abortion was unconstitutional with a deadline of amendment by December 31, 2020 but no amendment has been made yet despite that the deadline of amendment has been already past. Therefore, the crime of abortion should be now judged innocent in practice. However, even so, since it is only a judgment on the crime of abortion under the Criminal Act, and as long as abortion in relation to ineligibility for inheritance and abortion under the Criminal Act are not the same, even if the crime of abortion under the Criminal Act is currently unpunishable, it cannot be regarded that abortion is not a reason for ineligibility for inheritance under the Civil Act. However, the decision of the Constitutional Court on the Constitution, which is superior to the Civil Act, should be respected in the interpretation of the Civil Act, and the fundamental right termed self-determination of pregnant women mentioned in the above constitutional discordance adjudication should be respected. Therefore, after improved amendment is made so that the scope of permitted abortion is clearly determined, the purpose of the above decision of the Constitutional Court should be respected and abortion should not be considered as a reason for ineligibility for inheritance to the extent that it is judged to be legal as its illegality is precluded.