28. Case on the Inheritance of De Facto Marriage Spouse

[26-2(A) KCCR 311,2013Hun-Ba119, August 28, 2014]

In this case, the Constitutional Court held that the part of ‘spouse’ in Article 1003 Section 1 of the Civil Act which does not admit the inheritance of a spouse of de facto marriage does not infringe the right to inheritance and the right to equality and does not violate Article 36 Section 1 of the Constitution.

Introduction of Case

(1) Petitioner and Lee ○-Kyeong had been in de facto marriage since August 2007, until Lee ○-Kyeong died on March 21, 2011. Kim ○-Ok,who is a mother of the decedent Lee ○-Kyeong, completed the registrationof ownership transfer of the 1/2 portion of the instant real estate due to the inheritance on March 21, 2011, on April 11, 2011.

(2) Petitioner filed a complaint consisting of the principal claim for division of property and the preparatory claim for the enforcement of the procedure for the registration of ownership transfer due to the recoveryof inheritance against Kim ○-Ok with Busan District Court on September1, 2011 (The instant case was transferred to Busan Family Court on December 23, 2012).

(3) Petitioner filed a motion to request a constitutional review of Article 1003 Section 1 of the Civil Act, which was eventually denied, while the trial was pending. Subsequently, the petitioner filed this constitutional complaint on April 26, 2013.

Provision at Issue

The subject matter of review is the constitutionality of the part of ‘spouse’ of Article 1003 Section 1 of the Civil Act (revised by Act No.

4199 on January 13, 1990) (hereinafter, the ‘instant provision’) and the substance of the provision at issue is as follows:

Civil Act (revised by Act No. 4199 on January 13, 1990)

Article 1003 (Order of Inheritance of Spouse)

(1) If there exist such inheritors as provided in Article 1000 (1) 1 and 2, the spouse of the inheritee becomes a co-inheritor, in the same order as the said inheritor. If not, the spouse becomes the sole inheritor.

Summary of Decision

A. Right to Inheritance

The substance of the right to inheritance, as the right to property, should be in accord with the legislative policy. The Legislature has a broad discretion in creating the substances and limits of the right to inheritance.

The instant provision that does not recognize inheritance of a de facto marriage spouse intends to prevent possible disputes arising from inheritance, to promptly confirm legal relations regarding inheritance, and to promote the security of transaction by providing the neutral standard for inheritance. If a de facto marriage spouse can be inherit by rule, it would be against the intent of parties and it could cause legal disputes regarding inheritance to determine whether it was de facto marriage or not. A spouse of de facto marriage may inherit through the registration of marriage, or may obtain property of the deceased through gift or bequest. Also, the right to receive benefits under the Labor Standards Act, the National Pension Act and other laws is recognized for a spouse of de facto marriage. Therefore, the instant provision does not infringe the right to inheritance of the de facto marriage spouse.

B. Right to Equality

Considering that legal marriage and de facto marriage cannot be equally treated with regard to the legal relation such as inheritance which requires clarity and uniformity because of the possible effects to the third party, under the principle of legal marriage, the instant provision does not infringe the right to equality.

C. Article 36 Section 1 of the Constitution

Article 36 Section 1 of the Constitution states that “marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes and the State shall do everything in its power to achieve that goal.” Nonetheless, Article 36 Section 1 of the Constitution does not include de facto marriage that is not legally recognized. Therefore, the instant provision does not violate Article 36 Section 1 of the Constitution.

Summary of Concurring Opinion by Justice Cho Yong-Ho

Even though the instant provision does not violate the Constitution, the general denial of inheritance of spouse of de facto marriage would lead to substantial imbalance, considering that a spouse of de facto marriage can request division of property, and may cause infringement of the right to property and welfare of a spouse of de facto marriage. Considering the meaning of inheritance that supports the family of the deceased after death and liquidates the contribution of the property of the deceased, spouses of de facto marriage are not distinguishable from spouses of legal marriage in essence. Therefore, the law should be revised to allow the right to inheritance of a spouse of de facto marriage in some cases.

Summary of Concurring Opinion by Justice Kim Chang-Jong

The right to inheritance could be recognized for a spouse of de facto marriage. Nonetheless, if inheritance should not be allowed to a spouse of de facto marriage because of neutral clarity of standard of inheritors, prompt confirmation of inheritance legal relation, and security of transaction, then the right of division of property could be an alternative to protect a spouse of de facto marriage. Therefore, the Legislature should consider measures to protect and support the right to property of a surviving spouse of de facto marriage, including the recognition of the right of division of property of a surviving spouse of de facto marriage.