기여분과 대습상속인의 상속분

안영하(An Young-ha) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.2

  The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. Succession by Representation is generally approved in most countries. However along the history and social environment of each country, the forms of succession by Representation are differentiated individually.<BR>  In korea, about the succession by Representation, there are Article 1001, 1003 (2).<BR>  Article 1001 (Inheritance by Representation)<BR>  Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor.<BR>  Article 1003 (Order of Inheritance of Spouse)<BR>  (2) In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor.<BR>  And about the contributory portion, there is Article 1008-2.<BR>  Article 1008-2 (Contributory Portion)<BR>  (1) If there is a person among co-inheritors who has specially supported the inheritee through sharing living accommodations or providing nursing, etc. for a considerable period or has specially contributed to the maintenance or increase of the property of the inheritee, the value, calculated by deducting his contributory portion as determined by an agreement of co-inheritors from the value of property of the inheritee at the time the inheritance is commenced, shall be considered as an inherited property. The amount calculated by adding such contributory portion to the inherited portion calculated under Articles 1009 and 1010 shall be the inherited portion of that person. 〈Amended by Act No. 7427, Mar. 31, 2005〉<BR>  (2) If co-inheritors fail to reach an agreement under paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon the request of the contributor under paragraph (1), determine the contributory portion, taking into consideration the time, method and degree of the contribution, the value of the inherited property and other circumstances.<BR>  (3) The contributory portion shall not exceed the amount calculated by deducting the value of testamentary gifts from that of property of the inheritee when the inheritance is commenced.<BR>  (4) The request under paragraph (2) may be made when a request is made under Article 1013 (2), or as provided in Article 1014.<BR>  The portion inherited by the person who becomes an inheritor in place of the deceased or disqualified person in accordance with the provisions of Article 1001 shall be that of the deceased or the disqualified person. And if the person who becomes an inheritor in place of the deceased or disqualified person, has specially supported the inheritee through sharing living accommodations or providing nursing, etc. for a considerable period or has specially contributed to the maintenance or increase of the property of the inheritee before death or ineligibility for inheritance himself, his contributory portion acknowledged as his own. and contributory after death or ineligibility for inheritance is the same.

생명윤리 법제에서 나타나는 문제점에 관한 연구

안영하(Young-Ha An),서순택(Soon Taek Seo),우제창(Jechang Woo),오정균(Chung-Kyoon Auh),엄애용(Aeyong Eom) 미국헌법학회 2014 美國憲法硏究 Vol.25 No.2

생명에 관한 연구는 인간 및 생명체를 직접 연구대상으로 함에 따라 과학성과 함께 윤리성의 확보가 전제되어야 한다. 급속한 과학기술의 발달에 따라 현재 진행되고 있는 생명에 관한 연구는 인류에게 큰 도움을 줄 수 있는 반면에, 윤리성이 결여된 연구는 인류에게 심각한 재앙을 초래할 위험성도 동시에 지니고 있기 때문이다. 본 논문은 우리의 실정에 맞는 생명윤리관련 법제의 구축과 정착을 목적으로 한 연구의 일환이다. 우리의 현실에 맞는 법제도의 구축 및 정착을 위한 1단계로서 생명윤리 법제 전반에 걸쳐 나타나고 있는 법적 문제점을 기존의 연구를 중심으로 검토하였다. 이를 위하여 생명윤리 및 안전에 관한 법률을 기초로 하여, 생명에 관한 연구에 대한 헌법적 문제와 생명윤리법 자체에 내제된 문제, 연구윤리와 관련된 조직의 문제 및 윤리위반에 관한 처벌의 형사정책적 문제로 구분하여 살펴보았다. 세부적으로는 헌법적 기본권과 관련하여 (1) 배아의 헌법상의 지위, (2) 인간의 존엄성과 관련된 문제, (3) 미국의 헌법상의 기본권과 관련된 생명윤리 및 연구지원정책에 대하여 검토하였다. 또한 생명윤리에 대한 기본법이라 할 수 있는 생명윤리 및 안전에 관한 법률에 대하여 다음과 같은 내용을 검토하였다. 생명윤리심의위원회(국가생명윤리심의위원회 및 기관생명윤리위원회), 인간을 대상으로 한 연구에서 피험자 보호문제(인간대상연구 및 유전자검사의 동의), 배아 등 생성과 연구관련사항의 정비, 인체유래물은행, 유전자 검사기관에 대한 문제, 인체유래물의 개념과 범위, 위임입법의 한계, 법규위임체계상의 문제, 생명윤리법의 적용 범위의 문제 등에 관하여 검토하였다. 마지막으로 생명윤리에 관한 처벌규정상의 문제와 관련하여 (1) 벌칙규정의 상한제한방식 및 (2) 법정형의 형평성에 대하여 검토하였다. 검토 결과 현행 생명윤리 법제는 헌법적 문제뿐만 아니라 생명윤리 및 안전에 관한 법률 자체에서도 여러 문제점을 내포하고 있음을 확인하였다. 여기서 제기된 문제점들을 바탕으로 이를 해결할 수 있는 생명윤리법제를 정비할 필요성이 있다. Ethicality and scientific character are required for researches on human beings or living animals, for those researches can result in a terrible disaster if they are devoid of ethicality as well as high-tech those researches will bring about a great improvement in human lives. The purpose of this study is to establish the life research related laws that is appropriate for Korean society. First, we examined generally legal problems in existing bioethics legislation based on the bioethics and safety act of Korea, focusing on constitutional and legal problems, bioethics institution, and penalty of bioethics violations. Furthermore, the following are studied in regard to constitutional fundamental rights: constitutional status of the embryos, respect of human dignity, protection of human subject, human genome study, and protection of human rights. Second, we also examined the bioethics and safety act closely to study the following: national bioethics committee and institutional bioethics committee, protection of human subject in the human subjects research project (consent to human subjects research and genetic test), prohibition of human cloning, rules on production and research of embryos, human material bank, genetic testing institution, concept and scope of human materials, limit of delegated legislation, and applicative scope of the bioethics and safety act. Lastly, we examined maximum sentences of penal provisions and fairness of legal penalty in regard to the bioethics punishment regulations. In this study, we found that the current bioethics and safety act has several problems, constitutionally or legally. Therefore, it may be necessary to revise the bioethics legislation partly from the results of this study.

代襲原因으로서의 相續抛棄에 관한 立法論的 考察

안영하(An Young-Ha) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.1

The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. Succession by Representation is generally approved in most countries according to the idea of equity or expecting of succession. If an expected heir has not died nor has not become disqualified before the commencement of succession, he would have inherited the inherited property, and his lineal descendants also would have inherited him. That is Succession has been practiced among the family members, and it has been based on the inclinations for handing over their properties(personal property and real property) to either their close relatives or, at least someone who has consanguinity. In korea, about the succession by Representation, there are Article 1001, 1003 (2). Article 1001 (Inheritance by Representation) Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor. Article 1003 (Order of Inheritance of Spouse) (2) In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor. As Article 1001 and 1003 (2), Renunciation of Inheritance is not a Cause of Inheritance by Representation . But excluding of Renunciation of Inheritance as a Cause of Inheritance by Representation is not good. As Inheritance by Representation is based on idea of equity or the expecting of succession, Renunciation of Inheritance is also included in a Cause of Inheritance by Representation.

일본의 대습상속제도의 비교법적 검토

안영하(An Young-Ha) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.2

The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. Succession by Representation is generally approved in most countries. However along the history and social environment of each country, the forms of succession by Representation are differentiated individually. The succession by Representation of Japan is much similar with that of us :.at the point of its conditions and effects, while the succession by Representation of spouse is not admitted in Japan(Our civil law stipulates the representation by the spouse of the deceased or disqualified person. that is Article 1003 Paragraph 2). A comparative legal study on the succession by representation of Japan gives our study on that various dogmatic views.

被相續人의 孫 및 姪 等의 相續權의 性格

안영하(young-ha An) 한국비교사법학회 2005 比較私法 Vol.12 No.2

The succession by representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. In korea, in inheritance, persons become inheritors in the following order: 1. Lineal descendants of the inheritee; 2. Lineal ascendants of the inheritee; 3. Brothers and sisters of the inheritee; and 4. Collateral blood relatives within the fourth degree of the inheritee.(Article 1000 Paragraph 1). And in the case mentioned in Article 1000 Paragraph 1, if there are two or more inheritors standing in the same order, the closest in degree of relationship shall have the priority of inheritance. If there are two or more inheritors standing in the same degree of relationship, they become coinheritors. About the succession by Representation, there is Article 1001. Article 1001 (Inheritance by Representation) Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor. After all, the succession of grandsons and nephews of predecessor is provided two articals. The succession of grandsons and nephews of predecessor is composed as following. If all of sons or brothers and sisters who would become an inheritor have died, or have become disqualified before the commencement of succession, the succession of grandsons and nephews of predecessor is provided not Article 1000 Paragraph 1, but Article 1001. After all, the shares of succession of them are provided Article 1010. But if all of sons or brothers and sisters who would become an inheritor have renounced the right of succession, the succession of grandsons and nephews of predecessor is provided not Article 1001, but Article 1000 Paragraph 1. So the shares of succession of them are provided Article 1009.

주택임대차보호법 제9조에 의한 임차권의 승계 - 주택임대차보호법 제9조의 해석상의 문제를 중심으로

안영하(Young-Ha An) 한국비교사법학회 2008 비교사법 Vol.15 No.2

  The purpose of housing lease protection act is to secure stability in the residential life of national citizens, by providing for special cases to the Civil Act, with respect to the lease of buildings for residence.<BR>  About the succession to Right of Lease, It is Article 9.<BR>  Article 9 (Succession to Right of Lease of House)<BR>  (1) If the lessee dies without a person having the right of inheritance, the person who has a de facto marital relationship and has lived together with the lessee as a member of the family at his house, shall succeed to the rights and obligations of the lessee.<BR>  (2) In the case that the lessee is dead, if the person having the right of inheritance has not lived together with the lessee as a member of the family at his house, the person having the de facto marital relationship with the lessee, and the relatives within the second degree of relationship therewith, who have lived together with him at his house, shall jointly succeed to the rights and obligations of the lessee.<BR>  (3) In the cases as provided for in paragraphs (1) and (2), if an opposite intention is expressed to the lessor within one month after the lessee has died the provisions of the said paragraphs shall not be applicable.<BR>  (4) In the cases as provided for in paragraphs (1) and (2), any obligation created by the relation of lease shall be reverted to the person who has succeeded to the rights and obligations of the lessee. [This Article Newly Inserted by Act No. 3682, Dec. 30, 1983]<BR>  In compliance with housing lease protection act article 9, if the lessee dies without a person having the right of inheritance, the person who has a de facto marital relationship and has lived together with the lessee as a member of the family at his house, shall succeed to the rights and obligations of the lessee. And in the case that the lessee is dead, if the person having the right of inheritance has not lived together with the lessee as a member of the family at his house, the person having the de facto marital relationship with the lessee, and the relatives within the second degree of relationship therewith, who have lived together with him at his house, shall jointly succeed to the rights and obligations of the lessee.<BR>  But in the case that the lessee is dead, if the person having the right of inheritance has lived together with the lessee as a member of the family at his house, the heir succeeds the right of lease in compliance with the law of inheritance general principle.<BR>  I investigated the problem points which relates with the succession of the right of lease in this paper. In order to solve the problems which relate with the succession of the right of lease, I think that must separate a right of residence and a right of property. But the problem which relates with this will do researches in the next chance.

被代襲者의 配偶者의 代襲相續에 관한 立法論的 檢討 - 피대습자의 배우자의 대습상속에 관한 일반인 법의식 조사를 기초로 하여

안영하(An Young-Ha) 성균관대학교 법학연구소 2006 성균관법학 Vol.18 No.1

  The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. Succession by Representation is generally approved in most countries. However along the history and social environment of each country, the forms of succession by Representation are differentiated individually.<BR>  In korea, about the succession by Representation, there are Article 1001, 1003 (2).<BR>  Article 1001 (Inheritance by Representation)<BR>  Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor.<BR>  Article 1003 (Order of Inheritance of Spouse)<BR>  (2) In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor.<BR>  the succession by representation of spouse, in particular, is admitted in korea unlike other countries. Korea is the only country to admit the succession by representation of spouse.<BR>  But, at this point in time, the succession by representation of spouse has many problems.<BR>  This paper deals with problems of the succession by representation of spouse, and through A legislative study on the succession by representation of spouse, I will show the way to solve that problems.

대법원 2001. 3. 9. 선고 99다13157 판결에 대한 판례평석 - 소위 괌에서의 KAL기 추락사건 -

안영하(Young-Ha An) 한국가족법학회 2005 가족법연구 Vol.19 No.2

This paper deals with the Supreme Court's Decision of 2001. 3. 9, 99 다 13157. The issues of this decision are Presumption of Simultaneous Death and Succession by Representation. The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. That is to say, Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor. And In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor. However, In case two or more persons died of the same peril, it is presumed that they died at the same time. So then, if predecessors and a lineal descendant or a brother or sister who would become an inheritor in accordance with the Article 1000 (1) 1 and 3 are presumed that they died at the same time, is Succession by Representation recognized? This paper and the Supreme Court's Decision recognized it. And this paper deals with the case that all of lineal descendants or brothers or sisters who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, have died, or have become disqualified before the commencement of succession. A has two sons, B and C. And B has two sons D and E, C has only one son, F. If All of A's sons(B and C) have died, or have become disqualified before the commencement of succession, Legal Portions in Inheritance of F is what? The succession of grandsons and nephews of predecessor is composed as following. If all of sons or Brothers and sisters who would become an inheritor have died, or have become disqualified before the commencement of succession, the succession of grandsons and nephews of predecessor is provided not Article 1000 paragraph 1, but Article 1001. After all, the shares of succession of them are Article 1010. But if all of sons or Brothers and sisters who would become an inheritor have renounced the right of succession, the succession of grandsons and nephews of predecessor is provided not Article 1001, but Article 1000 paragraph 1. So the shares of succession of them are Article 1009. In this case, according to article 1000, Legal Portions in Inheritance of F is 1/3. But according to article 1001, Legal Portions in Inheritance of F is 1/2. I think that if all of lineal descendants or brothers or sisters who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, have died, or have become disqualified before the commencement of succession, their sons are applied to article 1001. In conclusion, the Supreme Court's Decision of 2001. 3. 9, 99 다 13157 is justified.

일본의 상속시킨다는 취지의 유언에 대한 일 고찰

안영하(An Young-Ha) 한국가족법학회 2007 가족법연구 Vol.21 No.1

  The will that a predecessor will portion his estate to his successor has been developed with the current figures through judgment, and was started by the requests of a staff in charge. There are stipulated 3 with will matters in the Japanese Civil law. Those are Determination of portion(§ 902), Determination of Method Division by Will(§908) and Testamentary Gift(§964).<BR>  Court judged that these wills are determination of Method Division. But theories are divided into several parts. About the will that a predecessor will portion his estate to his successor, theories are divided 4. Currently a lot of discussions are under discussion about that. However the will that a predecessor will portion his estate to his successor is not discussed in Korea. There are only 2 provision about disposition of property by Will in Korea.<BR>  Article 1012(Determination of Method Division or Forbidding Division by Will) and Testamentary Gift(Article 1074 and the rest) are those. And there is not a judicial precedent about it.<BR>  I think that a lot of discussions about the will that a predecessor will portion his estate to his successor are necessary.

대습상속제도의 입법론에 관한 제안

안영하(An Young-Ha) 전북대학교 법학연구소 2012 法學硏究 Vol.36 No.-

대습상속이란 피상속인의 상속인이 될 직계비속 또는 형제자매가 상속개시 이전에 사망하거나 결격자가 되어 상속권을 상실하게 된 경우, 그 직계비속 또는 그 배우자가 사망하거나 결격자가 된 者의 순위에 갈음하여 상속인이 되는 것을 말한다(민법 제1001조, 제1003조 제2항). 그런데 대습상속제도를 운용하는데 있어서 몇가지 문제점이 나타나고 있다. 현행 법규정의 미비로 인한 해석상의 난점이 나타나기도 하지만, 무엇보다도 인척상속의 형태인 배우자의 대습상속을 인정함으로써 발생하는 문제점도 있다. 이에 본 논문에서는 각각의 논점과 관련된 해석론 및 입법론을 간단히 정리한 후 대습상속제도의 전체적인 입법론을 제시하기로 한다. The succession by Representation occurs a lineal descendant or a brother or sister who would become an inheritor has died, or has become disqualified before the commencement of succession. Succession by Representation is generally approved in most countries according to the idea of equity or expecting of succession. If an expected heir has not died nor has not become disqualified before the commencement of succession, he would have inherited the inherited property, and his lineal descendants also would have inherited him. That is Succession has been practiced among the family members, and it has been based on the inclinations for handing over their properties(personal property and real property) to either their close relatives or, at least someone who has consanguinity. In korea, about the succession by Representation, there are Article 1001, 1003 (2). Article 1001 (Inheritance by Representation) Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor. About the succession by Representation, there is Article 1001 Article 1001 (Inheritance by Representation) Where a lineal descendant or a brother or sister who would become an inheritor in accordance with the provisions of Article 1000 (1) 1 and 3, has died, or has become disqualified before the commencement of succession, his or her lineal descendants, if any exist, shall become inheritors in the order in which the deceased or disqualified person would have become the inheritor. The man gets the rights of Representation is generally the lineal descent of the expected heirs. Succession law is one of the part that remains the national character. Our Civil Law stipulates the representation by the spouse of the deceased or disqualified person. that is Article 1003 Paragraph 2. Article 1003 (Order of Inheritance of Spouse) (2) In the case mentioned in Article 1001, the spouse of the deceased or the disqualified person, before the commencement of inheritance, becomes a co-inheritor in the same order as the inheritors provided in the same Article. If there exists no inheritor, the spouse becomes the sole inheritor. This legislation is the only one in the world in view of the comparative law. Succession by Representation has some problems. The purpose of this paper is compensate the defect.