Critical Review on the Claim to Amendments of the Inheritance Law

Abstract

Recently, various amendments on Korean inheritance law have been proposed. If the flow is largely summarized into two categories, it can be divided into “amendment of legal reserve of inheritance strengthening” and “amendment of strengthening survival spouse Inheritance.” The former is based on the principle of private autonomy and the latter on the principle of support. It is confirmed that there are still many things to be supplemented for policy and theoretical criticisms on the legal reserve of inheritance. In light of the fact that the average number of children is falling below ‘1’ due to ultra-low birth, criticism that the existence of multiple co-inheritors (especially children) negatively affects post-support is a belated argument. In addition, a balance between legalism and private autonomy in inheritance law cannot be found by approaching in accordance with the “recognition of death and freedom of wills” or the “theoretical com- position on the basis of inheritance justification.” It should be resolved through optimization between the principles implied by the Korean Civil Act (Inheritance Act and the general provisions system for juristic acts) and conflicting legal principles(Principien Optimierung). The legal principles governing today’s inheritance law include “the principle of legal regulation on relatives & inheritance, the principle of private inheritance and autonomy, and the principle of support.” The legislative demand for changes in the times is to “strengthen support, that is, to further standardize the newly emerging principle of support in the relatives & inheritance Act.” It is reasonable to focus on discussions centered on the “amendment of strengthening survival spouse inher- itance” rather than the “amendment of legal reserve of inheritance Strengthening”.