Whether a junior inheritor is entitled to waive his/her succession without waiting to lawfully accept a senior inheritor’s declaration of renunciation of succession (affirmative)

Since the period of care for an inheritor to file a declaration of renunciation of inheritance within 3 months from the date on which the commencement of inheritance becomes aware of the commencement of inheritance is established, the period of care for a junior inheritor should be calculated from the date on which the inheritor becomes his/her heir after his/her report of renunciation of inheritance was accepted as lawful, but as long as inheritance has commenced due to the death of the inheritee, each inheritor may file a declaration of renunciation of inheritance before his/her succession becomes effective simply because there are no legal grounds to restrict his/her right to choose acceptance and renunciation of inheritance in accordance with the above priority order of succession. Further, the legally accepted declaration of renunciation of inheritance by a senior inheritor is a natural premise for the refusal of the commencement of inheritance to himself/herself and cannot be viewed as a condition to prohibit the declaration of renunciation of succession because it is a natural premise for the refusal of succession by a junior inheritor to the effect of the declaration of renunciation of succession. Since the acceptance of the declaration of renunciation of succession can only be accepted after his/her refusal of succession, the acceptance of the declaration of renunciation of succession becomes effective after his/her refusal of succession.

[1] Articles 97, 1019(1), 1026 subparag. 2, and 1042 of the Civil Act

Claimant 1 and two others

decedents;

Incheon District Court Order 2002Ra1039 dated December 10, 2002

The appellant's appeal is dismissed.

The decision of the first instance shall be revoked. The applicant shall accept the report of renunciation of succession on November 4, 2002.

1. Basic facts

According to the records, with the spouse and lineal ascendant and descendant of the inheritee, the claimant filed a report of renunciation of inheritance with the non-claim 1, non-claim 2, non-claim 3, non-claim 4, etc. (hereinafter referred to as "non-claim 4 non-claim 4") on June 4, 2002 with the court 2002Ra618, and the claimant filed a report of renunciation of inheritance on July 25, 2002 with the non-claim 5 (Death of April 2, 1964) non-claim 5 (Death of April 2, 1964). The non-claim 4's report of renunciation of inheritance was accepted on August 23, 2002 before the claimant's acceptance of the previous report on August 9, 202.

2. Chief;

The appellant’s report of renunciation of inheritance is null and void prior to the acceptance of the report of renunciation of inheritance by the subordinate claimant prior to the acceptance of the report of renunciation of inheritance by 4 other than the senior claimant in the inheritance. As such, the claimant again accepted the report of renunciation of inheritance by 4 other than the claimant on November 4, 2002, and thereafter, the claimant filed the claim in this case with the intention to accept the effective refusal of inheritance.

3. Determination

In light of the above, the first time period of succession is for the benefit of the heir within 3 months from the time the heir becomes aware of the commencement of succession. Thus, the first time period of succession is for the benefit of the heir. Thus, the first time period of subordinate heir can be calculated from the day when the report of refusal of succession is accepted as legitimate, and it will be calculated from the day when the heir becomes aware that he/she became the heir. However, since the inheritance has commenced due to the death of the inheritee 3), each heir can file the first time of succession before the expiration of simple approval. Since there is no legal basis to limit this right to choose approval and renunciation according to the order of succession, the first time of refusal of succession is a legally accepted condition that the first time successor refuses the effect of the succession to himself/herself as it is a natural premise of the refusal of succession, the first time succession period of subordinate heir can not be seen as a legitimate condition that the first time of refusal of succession has the effect of the first time of refusal of succession, and the first time of refusal of succession can only be accepted without the first time of refusal of succession.

Therefore, unless there are special circumstances, such as the cancellation of the above refusal report of succession between the claimant and the claimant's previous refusal report of succession is accepted as legitimate and the claimant's previous refusal report of succession is accepted as legitimate, the commencement of succession cannot be made any more to the claimant by the effect of the refusal of succession, unless there are special circumstances such as the cancellation of the above refusal report of succession between the claimant.

4. Conclusion

Therefore, the claim of this case, which is based on the premise that the waiver of inheritance has already been effective, is illegal and thus, it shall be dismissed. The decision of the court of first instance is just as the conclusion and the appeal of the claimant is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Young-chul (Presiding Judge)

1) Article 1019(1) of the Civil Act.

Note 2) Supreme Court Order 91S1 dated June 11, 1991; Article 1021 of the Civil Act; Article 194(2) of the German Civil Act

3) Article 997 of the Civil Act

4) Article 1026 subparag. 2 of the Civil Act

Note 5)See Article 1947(1) of the German Civil Code, Article 1947(1), Machen Komer, BGB Ebbbs (197), 309.

(6) Article 2142(1) of the German Civil Code explicitly provides that a subordinate inheritor may waive inheritance upon the commencement of inheritance. Article 790 of the French Civil Code provides that a subordinate inheritor who has renounced inheritance may withdraw the renunciation of inheritance and make a new simple acceptance or a qualified acceptance unless the senior inheritor has granted a simple acceptance or a qualified acceptance prior to the senior inheritor (see, e.g.,aris, 23 novemre 1949). In cases where the inheritance qualifications vary as those of an inheritee adopted by the deceased are overlapping, the status of the deceased can be determined only once by deeming that all shares of inheritance were acquired at one time, and that a senior heir may choose approval and renunciation for each inheritance qualification of the deceased, and that a senior heir who has given the first priority prior to the renunciation of inheritance can not be admitted by the former’s opinion or the latter’s opinion on the acceptance of a new heir’s first priority after the renunciation of inheritance (see, e.g., Supreme Court Decision 2007Hun-Ga160, Nov. 16, 2007).

See Supreme Court Decision 2002Da21882 decided Nov. 8, 2002

8) Article 1042 of the Civil Act

9) Article 1024(2) of the Civil Act