피상속인의 배우자와 자녀 중 자녀 전부가 상속을 포기하는 경우 상속인의 결정 - 대법원 2023. 3. 23. 자 2020그42 전원합의체 결정 -

When all of the inheritee's spouse and children renounce their inheritance, there was a conflict between the theory that the spouse and grandchildren jointly inherit and the theory that the spouse inherits alone regarding who is the inheritor. In the 2013Da48852 decision on May 14, 2015, the Supreme Court declared that spouses and grandchildren become joint inheritors based on the retroactive effect of renunciation of inheritance under Civil Act Article 1042, but there was much criticism that this was an interpretation that ignored Article 1043 of the Civil Act. Recently, the Supreme Court decided by Supreme Court en banc decision on March 23, 2023, 2020Geu42, that the spouse becomes the sole inheritor based on the systematic and logical interpretation of the words and provisions of the Civil Act, the intention of the person renouncing inheritance, practical issues, etc.. Although the changed case has a valid conclusion, criticism may be raised that the conclusion violates Articles 1000, 1003, and 1042 of the Civil Act. In relation to this, this study presents the view that spouse's inheritance qualifications should be recognized as duplicates. In other words, if all of the children have renounced their inheritance, the status of the inheritor may be recognized as overlapping with the spouse, and the status of a (1st-degree) joint inheritor may be recognized with the children, and the status of a (2nd-degree) joint inheritor may be recognized with the grandchildren. Since the status of the spouse's (1st-degree) joint inheritor is higher than that of the (2nd-degree) joint inheritor with the grandchildren under Article 1000, (2), the spouse becomes the sole inheritor. In this way, if the spouse's inheritance qualifications under Article 1003 are recognized as duplicates, Articles 1042 and 1043, as well as the provisions regarding the decision of inheritor, can be interpreted in a normative harmonious manner. Although research on inheritance status has not been actively conducted, I expect active research on this topic as an opportunity through this study.