착오를 이유로 하는 상속 승인·포기의 취소

The Civil Code expressly provides that heirs may avoid their acceptance or disclaimer of inheritance according to the provisions of the General Part [its Article 1024 (2)]. This article examines cases where heirs avoid their acceptance or disclaimer of inheritance on the grounds of mistake. The main conclusions can be summarized as follows: 1. The voidability of acceptance or disclaimer of inheritance on the grounds of mistake varies from country to country. In jurisdictions that recognize this, similar types of cases are observed. This article examines in particular detail the case law of France, Germany, and Japan. 2. Even where the effect of acceptance of inheritance has occurred ipso iure, there is no reason to deny the application of the mistake provisions if the heir fulfilled the relevant grounds while manifesting the intention to accept the inheritance based on mistake as to fact or law. 3. In cases of acceptance or disclaimer of inheritance, the mistake provision may be applied in situations involving mistake as to contents or legal relevance. On the other hand, mistake as to legal effects does not, in principle, justify avoidance. Where there is a mistake regarding the composition of the inherited estate, if the heir examined the facts or law and assessed the solvency of the inherited estate but a mistake intervened, it may serve as a ground for avoidance. In any case, additional conditions (subjective and objective causation, absence of gross negligence) must be further examined.