Korean Civil Code Research Articles

Interpretation of Article 1008 of the Korean Civil Code according to the Interpretation of the Inheritee’s Intention

Interpretation of Article 1008 of the Korean Civil Code according to the Interpretation of the Inheritee’s Intention

채권양도금지 특약과 채권양도의 제3자에 대한 대항요건에 관한 비교법적 연구

At the time of the enactment of the Korean Civil Code, the provision regarding anti-assignment clauses and perfection of the assignment of claims against third parties were referred to the Japanese Civil Code. However, in 2017, Japan significantly revised Article 466 of its Civil Code, which deals with the anti-assignment clause. The provisions of the Japanese Civil Code regarding perfection of the assignment of claims against third parties were referred to the French Civil Code when Japan enacted its Civil Code in 1896. However, France revised its Civil Code to adopt a written form requirement for the contract of assignment of claims (French Civil Code, Article 1322), and removed the requirement of notification to the debtor for perfection of the assignment of claims against third parties, so that perfection of the assignment against third parties is acquired at the time of the conclusion of the assignment agreement (French Civil Code, Article 1323). The German Civil Code, from the beginning, stipulates that perfection of the assignment against third parties is acquired at the time of the conclusion of the assignment contract, and notification to the debtor is not a requirement. Considering these global revision trends, it is desirable to consider revision of the Korean Civil Code regarding anti-assignment clauses and perfection of the assignment of claims against third parties. As a proposed revision to the Korean Commercial Code, the introduction of a provision specifically dealing with receivables can also be considered. According to this proposal, for non-monetary claims, the assignment of claims would be void if the assignee is aware (or grossly negligent) of the anti-assignment clause, and the assignment would be valid if the assignee is unaware under the Korean Civil Code; and in the case of commercial receivables, the assignment of receivables would be valid regardless of whether the assignee is aware or unaware of the anti-assignment clause, thereby protecting the safety of transactions involving receivables under the proposed Commercial Code revision. An analysis of overseas legislation shows that there are few examples of legislation that stipulate notification to the debtor as a requirement for perfection of the assignment of receivables against third parties. With France’s revision of its Civil Code, the Japanese Civil Code is almost the only example of such legislation. It is time for Korea to consider a revision that liberates the assignor from the obligation to notify the debtor in order to perfect the assignment against third parties. To alleviate the burden of notifying the debtor of the assignment of receivables, it is necessary to revise the Act on Security over Movable Assets and Receivables to include the assignment of receivables within its scope of application.

지하공간에서 건설 공사를 위한 법제 고찰

The necessity for construction projects in underground spaces is gradually increasing. Currently, since there is no special law governing underground spaces, the Civil Code is applied. However, the Civil Code does not present a legal concept for underground spaces or deep strata. Therefore, there has been ongoing debate on whether the effect of land ownership under the Civil Code is recognized or excluded in deep strata. The “Deep Strata Act (Draft)” proposed in September 2020 mainly stipulates that when constructing or managing transportation facilities in deep strata, it is permissible to use the deep strata underground, and in such cases, compensation for the land as prescribed by the “Land Compensation Act” is not required, nor is it necessary to establish a separate superficies under the Civil Code. This premise implies that ownership rights do not extend below the boundary depth. However, simply limiting private ownership rights for public projects could lead to essential infringements on property rights, which necessitates considering the relationship between ownership and superficies under the Civil Code, as well as compensation for losses, when enacting special laws. Particularly, unlike the Japanese Civil Code, Article 212 of the Korean Civil Code includes an abstract provision of “legitimate interest,” making it difficult to adopt the Japanese Deep Strata Act as is. Under the current legal system, construction projects in deep strata require individual assessments of the scope of ownership, as well as the establishment of separate superficies and compensation for losses. Nevertheless, for the efficiency of construction projects in deep strata, it is believed that not only the enactment of special laws but also a legal review of the Civil Code and other legal principles is necessary.

프랑스 민법에서 소멸시효 완성의 효과

In this article, the author examines the effects of liberative prescription in French civil law and its implications for the interpretation of the Korean Civil Code. The conclusions can be summarized as follows:
 1. The question of whether a right is extinguished by the expiration of a prescription period, whether the expiration must be pleaded as a defense, and who may plead it, is a long-standing issue that has been debated since Roman law.
 2. The provisions of the French Civil Code regarding the effects of liberative prescription generally align with the absolute theory in Korean law. The expiration of a prescription period results in the extinguishment of the right or its action, allowing the benefit of prescription to be claimed by other interested parties in addition to the debtor. However, the court cannot consider it ex officio, and restitution is not allowed if the extinguished obligation has been paid. In contrast to our absolute theory, French law differs in that the debtor's other creditors can claim the benefit of prescription only to the extent that the debtor is insolvent.
 3. The following observations can be drawn from French civil law for the interpretation of the Korean Civil Code. First, the necessity of claiming the benefit of prescription is closely related to the possibility of its waiver, and under the absolute theory, therefore, the defense of prescription is treated as a procedural matter concerning the extinguished rights. Second, in view of Article 404 (2), a debtor should be able to contest a defense of prescription against the oblique action of their creditor's creditor if the latter's claim is already time-barred. Third, claiming the benefit of prescription by other creditors of the debtor in question, including mortgagees in inferior rankings, is permissible, but only to the extent that the debtor is insolvent, aligning with the policy of the oblique action.

신종전형계약의 민법전 편입 방법론에 관한 연구

The expansion of the ‘typical’ contract of korean civil code means the expansion of the freedom of contract. Therefore, the incorporation of new contracts into the Civil Code due to changes in society is more than welcome. Based on the discussion at the time of working on the civil law amendment in 2014, which didn’t succeed, this paper explored the meaning of incorporating new contracts into the civil law after examining the kind of methodology of legislation, typology of new contracts, and types and solutions of mixed contracts etc.
 First of all, the incorporation criteria at the time of working on the civil law revision in 2014, such as it’s utilization in daily life, frequency in court decisions, validity based on comparative legal research, it’s independency as a type of contract and normality, are still considered valid. As a legislative method, the legislative process is important, but the pre-legislative evaluation is also important, and legislative policy decisions must be made carefully. It was emphasized that the so-called salami legislative strategy has limitations and that the system and unity of civil law can be improved through a full amendment. This paper urges people to be alert to the phenomenon that contract types closely related to the daily life of the people are settled outside the civil law (excessive expansion of special privatel law) and to accept them back inside the civil code. At least, it is necessary to always keep in mind the interpretation of systematic harmony with the basic principles and rules of civil law. Travel contracts, brokerage contracts, and medical contracts were discussed only to the extent necessary in relation to the subject of this paper. The characteristics of typology (openness, totality, hierarchicality, clarity, and flexibility) were examined through examples of transaction-typical contracts. The key is to detect the difference between “subsumtion” and “classification (to type)”. In addition, the types of mixed contracts and their solutions were explored by leaning on some Supreme Court's precedents. The worth-evaluating, meaning-centered, and overall observation methods, which are characteristic of typology, generally present specific and valid solutions to the issues, but this is also the result of enduring some uncertainty of typology. Research and reflection on the solution of mixed contracts are also meaningful in the discussion on the incorporation of new contracts into the Korean Civil Code. When legislating a typical case in which the combination solution is judged as reasonable, appropriate methods (e.g., applying mutatis mutandis to each typical contract or applying specific regulations to them each) are used, and the legal requirements by legislation are more strictly defined in cases where an absorption solution is valid (e.g., using rule-exception regulations). The theory of interpretation follows accordingly. Furthermore, in the case of a contract that includes 'atypical elements', it is necessary to be careful in the analogical application of the relevant contract regulations or laws within the scope of such 'atypical elements'. The study of modern contract types is, in the end, an exploration of 'structural types of contracts’ - as can be seen in the contract structure theory and non-performance structure theory or case structure theory. And the normative power of those structures types comes from the empirical foundation of the practice and the broad approval of related organizations such as academia. In the type of structure, existence and justification are not separated. They communicate with each other. And as this communication is repeated, orderly(structure-oriented) regulating of ever-changing reality can be achieved. As a result, a more realistic 'normative structure type' is to be found.

추완청구권과 민법 개정

This paper dealt with the issue how we should incorporate the Right to Cure, a remedial relief for the obligee in the case of an non-conforming (defective) performance, into the Korean Civil Code. The contents of this paper could be summarised as follows. First of all, as the Right to Cure is an instrument that could enforce 'pacta sunt servanda', a key principle in contract law, while striking a balance between an obligor's interests and an obligee's interests, its codification is necessary. This is especially clear after a comparative study: Gem血1y and Japan codified the Right to Cure in the amendments of their Civil Codes; international model laws (CISG, PICC, PECL, DEFR), too, have codified the Right to Cure. Secondly, the Right to Cure should be included in the General Provisions of the Law of Obligations since it is applicable to all types of contracts specified in the Particular Provisions of the Law of Obligations and since the Right to Cure is a typical and general remedy for a breach of contract. However, in doing so, 'disproportionality' ought to be stipulated as a cause for limiting a Right to Cure, there should be a short limitation period, and it must be clear that the obligor bears the cost of Cure. Thirdly, there is a need to specifically codify the Right to Cure into clauses related to
 Warranty for Defects, a classic example whereby non-conforming (defective) performance is an issue. If such codification were to take place, whether we should recognize a choice - to the seller - regarding the means of Cure will be an issue. However, since the non-conforming (defective) performance is attributable to the seller himself or herself, there is no need to recognize the right of a choice regarding the means of cure for the seller. Furthermore, whether a buyer could claim a Compensation of Damages in lieu of a Cure without exercising the Right to Cure is also an issue. Here, it ought to be codified that the buyer should first offer the seller an additional period for Cure, only after which the buyer could claim a Compensation of Damages in lieu of the Cure considering the rationale of a Right to Cure and that of Section 395 of the Korean Civil Code. This Priority of Cure must be enforced even in the case of a buyer resorting to the Right to Price Reduction or to termination of the contract. As the obligor's interests with regard to Cure will be protected by the aforementioned doctrine of Priority of Cure, there is no need to separately codify an obligor's Option to Cure into the Civil Code.

사인증여(死因贈與)의 철회 - 대상판결: 대법원 2022. 7. 28. 선고 2017다245330 판결 -

Although Korean Civil Code's article 562 notes that "The provisions on legacy shall apply mutatis mutandis to a gift that becomes effective due to the death of a donor." under the title of mortis causa, there are no specific regulations on which codes get mutatis mutandis applied. Thus this part entirely depends on interpretation, and there has been a theoretical dispute over whether article 1108 regarding arbitrary withdrawal of a will without the consent of the legatee can be applied mutatis mutandis to mortis causa. The dominant opinion is that mortis causa is a contract and must not be allowed to applied mutatis mutandis with the regulations on withdrawal of legacy. On the other hand, judicial precedents have not taken a clear position on this; however, contrary to the dominant view, the civil code's article 1108 on the withdrawal of will approved the mutatis mutandis application theoretically for the first time in the target judgment. Considering the intent of mortis causa and legacy, it is hard to acknowledge the difference between the two in that the donor's final intention regarding the attribution of one's property must be respected. Nevertheless, dominant view in Korea has been that the regulations on mortis causa should not be applied mutatis mutandis with article 1108 according to the legislator's decision in the section of the contract of legacy. However, considering the purpose of the enactment, the reason why regulations on mortis causa were placed in the section of the contract was that even if it was concluded in the form of a gift contract, it corresponds to a legacy and should be put as a care provision in order to show difference from legacy. If so, the remaining argument is the precedence in the comparative sentence between the beneficiary's right to expect and the donor's respect for the donor's final intention, which is judged to be more respectful of the donor's final intention, considering that the legacy and the mortis causa have the same purpose. Considering these points, it was very reasonable to haved judged that the target judgment applied mutatis mutandis with article 1108 on the withdrawal of the legacy is allowed to withdraw mortis causa unless there were special circumstances.

이혼에서 파탄주의로의 전환 필요성과 법률개정 방안

In Korea, the Japanese Civil Code was used during the Japanese colonial period, and the Civil Code, a translation of the Japanese Civil Code, was applied until the Korean Civil Code enacted in 1958 was enforced in 1960. The Korean Civil Code is very similar to the Japanese civil law, and the number of articles is significantly smaller and lacks specificity compared to the civil laws of many Western countries. In the case of the divorce law, the deficiencies of such legislation are being supplemented by the interpretation of the courts. Divorce laws in the West, such as Germany, England, France, and the United States, have been revised in the direction of protecting the rights and interests of the parties through numerous historical changes and discussions since the 19th century. Based on the history of changes in various Western countries, Korea will also need to revise the civil law in the direction of fulfilling the state's constitutional duty to protect marriage and family life.
 Through counseling before marriage and divorce, the marriage and family system should be strengthened, and counseling and other educational programs should be activated so that a recoverable family can be saved. In order to minimize conflicts in a marriage relationship that has already been irretrievably broken and exists only legally, no fault divorce based on separation for a certain period of time should be introduced. And in order to protect innocent spouses and children who do not want to divorce, marriage should be terminated only if protective measures or agreements for innocent spouses and children are included in the divorce ruling, and divorce should not be allowed if the divorce threatens to cause economic, social and psychological difficulties for them.
 In addition, if legal separation system where the obligation to cohabit is exempted and a marriage is deemed to have broken down after a certain period of separation is established, I think it can serve as a buffer zone to encourage reunion after separation and also as a gateway from marriage to divorce. The legal separation system can alleviate the impact of divorce, and has an economic effect almost similar to divorce, except that the marriage relationship is legally maintained, so the parties can attempt reconciliation while stably separating for a certain period of time.
 I think it is desirable to unify the divorce procedure by incorporating the divorce by agreement system into the judicial divorce procedure to ensure that the rights and interests of the divorced parties are fully protected. As with the divorce laws of many countries that adopt no fault divorce, even if there is mutual consent to divorce, divorce must be conducted through a trial and should be granted only after court approval of an agreement regarding children and the financial effects of the divorce. Additionally, if a couple with minor children wants to divorce by agreement, counseling should be mandatory.
 In addition, according to the Supreme Court precedent, Korea's property division system has the main purpose of distributing the actual common property acquired during marriage, and the supportive nature such as consideration for the other person's livelihood security is added. Since the current support system is insufficient to protect spouses with poor economic status in that the system is not provided by law, a separate support system after divorce should be prepared like in many Western countries.
 As pointed out by the Supreme Court's ruling in 2015, the fact that the spouse responsible for breakdown of marriage is not allowed to file for divorce is also intended to prevent the other spouse from being expelled by the spouse in the bigamous relationship.

채권자취소권에서 취소청구와 원상회복청구에 대한 제척기간의 통일적 적용 필요성에 관하여

Under the Korean Civil Code, the obligee's right of revocation is characterized by the fact that only the plaintiff and the defendant have the effect of cancellation according to the theory of relative invalidity, and other creditors can also enjoy the effect of restoration. In addition, a short-term exclusion period is provided to minimize the liquidity condition caused by the exercise of the right to cancel. The precedent takes a position to consider a request for restoration in determining the scope of cancellation of a fraudulent act.
 Under this premise, once a request for cancellation is made, the beneficiary will be in an unstable position for a long time if the limit of the exclusion period is not applied to the request for restoration. This is not consistent with the purpose of our creditor revocation system, and it is difficult to agree with the attitude of the target judgment in that only creditors can make various choices, giving creditors an edge over bene- ficiaries, and infringing on relative invalidity and creditor egalitarianism. It would be most desirable to resolve this legislatively, but the current civil law amendment does not include this. It may be possible to consider a solution that requires the merger of cancellation claims and restoration claims, and a plan to specify the scope of the exclusion period. And even before the revision of the Civil Code, the attitude of the target judgment needs to be changed through a change in precedent.

주택임대차 시장 상생방안

In South Korea, the domestic housing supply rate has already exceeded 100% since 2008, but the home ownership rate in 2021 still remains at 57.3%. In response to large-scale Chonse fraud, the government has come up with various solutions, but there is criticism that it is insufficient for a fundamental solution. This paper aims to derive a win-win plan between landlords and tenants in the rental market through legal and institutional improvement.
 First, it is necessary to partially restrict private landlords from freely choosing whether to register as rental businesses. Through this, it is possible to prevent a rental business operator who meets the requirements for rejection of the registration application under Article 7 (7) of the Special Act on Private Rental Housing from entering the rental market. In addition, the tenant's right to claim the return of the deposit can be substantially secured by requiring additional asset requirements for rental businesses of a certain size or larger. Although the lease system has positive factors such as a role as a residential stepping stone and a reduction in housing costs, it basically grants the right to freely dispose of a large amount during the lease period, while the legal protection for its return is insufficient. There have been various legal and institutional efforts to compensate for this, but tenants are still not sufficiently protected. The old customary Chonse was incorporated into Article 303 et seq.(Right to registered lease on a deposit basis) of the Korean Civil Code, but Chonsegwon is rarely used in practice. In terms of the protection of tenants, it is reasonable not to allow Chonse Lease. In reality, it is also possible to consider forcing the registration of leaseholds that are paid a certain amount or more of rental deposits. It is necessary to correct the practice that rental deposits are received much more than collateral purposes. Article 551 (1) of the German Civil Code restricts rental deposits not to exceed three times the rent for one month. It may also be considered to force leaseholds that are paid a certain amount or more of rental deposits to be registered.

성년후견제도 시행 10년과 새로운 입법적 과제

The main feature of the new adult guardianship system which came into force on 1st July 2013 is that it introduced social protection element to the area of statutory representation for the persons under guardianship, who used to be represented by family member guardians. But the new adult guardianship system has been exposed to critics that it functions as a barrier to exclude persons with dementia, developmental disabilities, or mental health issues from participation in social activities through legal actions rather than as a facilitator to promote them to do so. With this kind of concerns, the author conducted research on what new legislative tasks are required in the area of guardianship, or statutory representation, and enduring power of attorney so as for persons with decision making disabilities to be supported to participate in social activities through legal actions. As a result of the research, this paper suggests the reform of the Korean Civil Code and the enactment of a social service act the main purpose of which is to register the enduring power of attorney and assist and supervise the registered attorney. The following suggestions are among the reform of the Korean Civil Code. Firstly, this paper suggests that legal provisions on adult guardianship including those on the restriction of legal capacity of persons in the guardianship be abolished in the general part of the Civil Code; instead, the general legal provision on mental capacity shall be inserted there. It means that all the provisions on guardianship shall be placed in the family law part of the Korean Civil Code. Secondly, Adult guardianship shall be separately regulated from minor guardianship because both guardianships target at distinct purpose respectively and do not share common features except the provision on remuneration and reimbursement of expenditure spent by guardians. Moreover, this paper suggests that adult guardians shall be appointed based on the principle of necessity: the power and authority of guardians and the duration of guardianship is subject to the extent which persons under guardianship are expected to be supported immediately and in the very near future. In this regard, persons under guardianship may be allowed to do legal transactions with the consent of guardians only in the case where such transactions are likely to harm the persons under guardianship. Thirdly, this paper suggests that legal provisions on contractual guardianship shall be abolished in the Civil Code, which caused negative effects on the future of still available enduring power of attorney without any special enactment. Lastly, this paper suggests that a special act, the main contents of which are to register the enduring power of attorney documents and other statutory representation power based on various social welfare statutes and supervise those legal representatives so as for elders and other persons suffering from illness and disabilities to cope with risks they face while legal transaction, shall be enacted. The tile of that statute can be “the Supported Decision Making of Elders and Persons with Disabilities Act”; the Ministry of Health and Welfare shall be the competent department, which establishes and maintains the agency, which shall be responsible for registration of legal representation and supervision of representatives.

일본 개정 유류분법의 해석과 적용

The amendment of Japanese inheritance law, promulgated on July 13, 2018 and inacted on July 1, 2019, has changed a wide range of legal relations with regard to imperative inheritance. The most remarkable change in imperative inheritance law is Article 1046 of Japanese Civil Code which stipulates that the heir who may claim the forced heir’s right shall claim restitution in money. Under the new law, the heir who claimed the forced heir’s right no longer has the right in rem over the property given to a third person. This article reviews each provision of Japanese imperative inheritance law and the academic discussion in Japan thereof. Based on the review, I suggest amendment of some provisions of the Korean Civil Code (hereinafter “KCC”). More specifically, I suggest the following amendments: (a) the range of the heir who may claim the forced heir’s right shall be reduced to the spouse and children of the deceased; (b) the forced heir’s right shall be constructed as monetary claim; (c) the range of donation that becomes the subject of the said right shall also be reduced in terms of time period; (d) the order of restitution shall be stipulated in KCC; (e) the potential heirs shall be able to abandon the said right in advance.

청산으로서의 공유재산 분할

When a co-owned asset is to be divided, could the rights and duties of the co-owners against each other be considered in the sense that they are reflected in the concrete result of division? In practice, the question has been raised especially with regard to the division of inheritance. It is, however, an issue which affects the co-ownership in general. This article attempts to answer it from a historical and comparative perspective. The conclusions are as follows.
 1. That the division of a co-owned asset or inheritance has an effect of liquidating the legal relationship between its co-owners (damages, restitution of fruits, compensation for expenses etc.) was already acknowledged in Roman law. The French Civil Code had not known this rule at first, but later introduced it after doctrine and case law had allowed the same result. The corresponding norms can be found in the German Civil Code, too.
 2. Also applying the Korean Civil Code, the interpretation that the legal relationship between the co-owners can be reflected in dividing a co-owned asset or inheritance is definitely possible. It is justified by the division’s purpose, an analogy to art. 1008 and a comparison with dissolution of partnership.
 3. In view of division of inheritance, this rule applies as follows: (1) The burden of inheritance costs should be reflected in division. (2) A substitute asset should be considered according to whether it arises between the co-owners or against a third party. In the former, the substitute asset itself is to be divided. In the latter, damages or restitution claims of the co-owners are to be calculated into the divided share. (3) Fruits or revenues from inheritance can be divided in advance, but are subject to division of inheritance when still extant. (4) Divisible claims and duties divide themselves ipso iure upon devolution of an inheritance. However, they can be redistributed by way of division if necessary for an equitable result.

연명의료 보류·중단에 대한 환자 가족의 결정

In this paper, the legal system is discussed in which a patient's family decides to withhold or discontinue life-sustaining treatment on behalf of the patient. After many decades of discussion in Korea, the Korean Act on Hospice and Palliative Care and Decisions on Life-sustaining Treatment for Patients at the End of Life was enacted in order that patients might decide whether to receive life-sustaining treatment or withhold or discontinue it. However, the Act has many errors or flaws related to the Korean Civil Code. This Act permits the decision by the family decision to withhold or discontinue life-sustaining treatment for the patient that lead to the earlier arrival of his or her death. This permission does not suit the purpose of introducing a system that allows the life-sustaining treatment to be withheld or discontinued by the patient’s intent. Examples of issues that reveal these points are as follows. First of all, the error can be pointed out that the decision to withhold or discontinue life-sustaining treatment was recognized as an expression of intention or legal act, not a quasi-legal act. Accordingly, minors are improperly specialized in the decision to withhold or discontinue life-sustaining treatment. In addition, many problems are identified in relation to the legal representative who has the parental authority to decide on withholding or discontinuing life-sustaining treatment for minors. The above mentioned Act has flaws in legislation in the case of sole parental authority, the situation of conflict of interests, the case of acting parental authority on behalf of underage children over their children, the case of deprivation of parental authority, and the case of a parent with parental authority alone without the status of a legal representative. There is also a problem in the composition of provision related with each proxy decision for minor patients and general patients. The ambiguity of the reasons for restricting the right to decide makes it difficult to judge who the members of a group of decision makers. The fact that various requirements for exercising the right to decide must be supplemented by interpretation causes difficulty in implementing the decision to withhold or discontinue life-sustaining treatment in the medical field. Furthermore, the flaw in legislation that makes it impossible to withhold or discontinue life-sustaining treatment for patients without any family to decide shows the need to accept the theory of an abstract hypothetical intention to replace the present family decision system. Finally, the fundamental point to be mentioned is that we should remember that the design of the present system for the decision to withhold or discontinue life-sustaining treatment is to ensure that the patient's own conviction to choose the path of ‘natural death’ be properly respected.

가족의 성(姓)

Recently, gender equality is an important topic in our life, and in particular, there have been media reports on ‘the principle that the father’s surname takes precedence over the mother’s name’ in family law. According to Article 781 paragraph 1 of the Korean Civil Code, it specifies that the father’s name takes precedence when determining the child’s surname, and the surname of the mother can use as the surname of the child that there is an agreement between the parents when registering marriage. This article is criticized from the point of view of gender inequality, and it seems that most jurists agree on the need to reform this article. Family name is not unique to Korean law and culture, so we comparatively studied how other countries determine family name respecting gender equality. According to our comparative study, there are laws of other countries which states ‘the married name’ or ‘the usual name(nom d’usage in French)’ which influence the surname of the child, and there are laws which specify the priority of the convention of the parents to determine the child’s surname. In addition, we can find several ways to determine the child’s surname if one of the parents did not agree in the latter case. Since the introduction of ‘the married name’ or ‘the usual name’ for Korea may lead to social and legal confusion, it is reasonable to study on this subject on the assumption that ‘the married name’ and ‘the usual name’ are not introduced. That is to say, it is difficult to change the family name once decided, according to the principle of the immutability of the family name. Therefore, one must be more careful in determining the surname of the child. On these important issues, we propose a way to reform ‘the principle that the father’s surname takes precedence over the mother’s name’ into the principle that the father’s surname takes precedence if there is no agreement between parents, to introduce another method of determinations, and to change the time of determination from the time of registration of marriage to birth registration of the child. Through these studies, our law should introduce a family name-determining method that society agrees with.

중국민법상 금지청구권에 대한 소고

Chinese Civil Code that was enforced in 2021 prescribes injunction aimed at real rights in Article 236 of the Part of Real Rights based on Article 35 of the repealed Chinese Property Law, and prescribes injunction aimed at torts in Article 1167 of the Part of Torts in accordance with Article 21 of the repealed Chinese Tort Law, meanwhile injunction aimed at personality rights has been prescribed in Article 995 of the Part of Personality Rights. In addition, Article 179 of the Chinese Civil Code which is about the methods of civil liability stipulates ‘cessation of obstruction’, ‘removal of obstruction’, and ‘risk elimination’ as one of the methods of civil liability in Paragraphs 1, 2 and 3, therefore Chinese Civil Code legislated injunctions as right to claim for cessation of obstruction, right to claim for removal of obstruction, right to claim risk elimination. Accordingly, in this paper we introduce and examine injunction aimed at real rights, injunction aimed at personality rights and injunction aimed at torts recognized under Chinese Civil Law, and introduce the situation of discussions in China on the interrelationship of the three injunctions in detail. Besides in Chinese Civil law whether rights to injunctions is subject to extinctive prescription, the legal principles of restricting injunctions and discussions in China between injunctions and preservation litigation are also introduced in this paper. The legislation of injunctions aimed at real rights, personal rights and torts in Chinese civil law can be said to be a legislative attitude with few legislative examples in other countries. In addition, clarifying the relationship and application of injunctions under Articles 236, 995, and 1167 of the Chinese Civil Code is a task to be resolved in the future. Recently, Korean Ministry of Justice proposed to legislate injunction aimed at personal rights as an amendment of Korean Civil Code, in the meantime there have been several discussions on the revision of injunctions due to the revision of the Korean Civil Law. Legislative discussions on the rights to injunction in Korea are expected to continue in the future, and when discussing it legislation on the rights to injunction in Chinese civil law can be considered to be an important legislative reference.

A Legislative Study on Applicable Laws for International Marriage and Divorce

This article aims to present how to revise the choice-of-law rules for international marriage and divorce in the Korean Private International Law Act of 2001 (hereinafter the “KPILA”). To this end, this article reviews all the arguments, as much as possible, for the choice-of-law policy suggested before the enactment of the KPILA, and foreign legislations, including the instruments of the Hague Convention on Private International Law and the European Union. The KPILA is based on the principle of nationality in relation to the laws governing the personal status, including the establishment and effects of marriage, and divorce. While maintaining this approach, it is necessary to expand the principle of habitual residence and, for this purpose, to specify the concept and criteria of habitual residence in the KPILA. As to the nationality of the person with multiple nationalities, there is a necessity to abolish the prejudiced principle of the priority of Korean nationality and find what is most closely related to the person among the nationalities, primarily based on the location of habitual residence. As for the substantive requirements for marriage, while maintaining the principle of distributive connection, in order to stipulate the consequences of interpretation of public policy under the KPILA and to resolve the difficulties interpreting the bilateral (one-sided) or multilateral (two-sided) grounds for interrupting the establishment of marriage, it is necessary to add a new provision in the KPILA that specifies as internationally mandatory rules the provisions in Korean Civil Code (hereinafter “KCC”), i.e. Articles 815 and 816, for the grounds for annulment or cancellation of international marriage. While maintaining the principle of selective connection with respect to the formal requirements of marriage, it needs to revise the KPILA and the Korean Family Relations Registration Act to enable the marriage registration of foreigners married in Korea in order to protect domestic transactions, and to revise the KCC to ensure that consular marriages are possible between Koreans and foreigners in order for the management and supervision by the KCC and Korean public officials (consuls, etc.) on Korean nationals marrying abroad. As to the general effects of marriage, while maintaining the objective principle of subsidiary connection without recognizing the party autonomy, there is a need to amend the KPILA to give priority to the law of the place of common habitual residence over the law of common nationality. For the perspective of the choice-of-law policy, it is necessary to treat the foreigners in Korea equally, especially the foreign couples of the same nationality living in Korea, by ensuring the application of Korean law. With respect to divorce, while applying mutatis mutandis the objective principle of subsidiary connection regarding the general effects of marriage, it needs to establish a new provision that recognizes the corrective connection to the law of forum and another new provision specifically stipulating that some of the side effects of divorce, such as the effects of parenthood, the maintenance and the guardianship, are not governed by the law governing divorce.

Forced Heirship and Trust

In South Korea, there is an academic dispute whether an asset transferred to a trust could be clawed back based on the claimant’s forced heirship and, if the answer is positive, in which shape this claw-back would take place. The author of this article tries to give a comparative overview as to this question, analyzing American, English, Swiss, French and German law. Hereby he observes what follows. (1) The claw-back is overall granted. (2) The revocability of trust plays a crucial role to determine the shape of this claw-back. (3) The forced heirship or comparable right guarantees that the claimant demands his or her share from the trust’s capital. The author thinks these insights should be respected when one applies the Korean Civil Code. This means what follows. (1) The claw-back should be granted. (2) The trust in lieu of will (revocable trust) whose life-time interest is vested upon the settlor should be treated as donation inter vivos which takes effect at the settlor s death. The claw-back is to be raised against the trustee or beneficiary into whom the trust’s capital flowed. (3) The testamentary trust should be treated as legacy, the irrevocable living trust as donation inter vivos which takes effect at its settlement. The claw-back is also to be raised against the trustee or beneficiary into whom the trust’s capital flowed.

Recent trend and issues in amending family law in Korea

Civil law countries generally include family law in their respective civil codes. The Republic of Korea is not the exception under this aspect. The Korean Civil Code which was enacted in 1958 and came into force in 1960 is structured on the base of the Pandekten system. Based on it, Part IV of the Civil Code is the law on relatives. The Korean Civil Code since its coming into effect on January 1, 1960 has been amended twenty nine times, among which thirteen amendments concerned the revision of the law on relatives. Given that general reluctance to amend the Civil Code in Korea, the relative regularity of the revisions show how significant the changes were that took place regarding family relations in the Korean society. A study of the history of amendments show that the factors of amending family law are three-fold. First, family law was amended for the purpose of gradual evolution of the Code by shedding elements of premodern law found therein. The amendments of 1962, 1977, 1990 and 2005 took place due to such a factor. Second, there were those amendments that were the result of the Korean Constitutional Court’s decision that determined that particular provisions inheritance were either unconstitutional or non-conformable to the Constitution. Third, family law was also amended in order to reflect the urbanization, industrialization, ageing of the Korean society and the rise of individualism, thereby strengthening the institution of family and affording more protection to the weak within the family. The latest amendment was the result of the latter. Among other things, the article pays some attention to the family legislation of North Korea, its specific features and unique structural differences from both the law of the Republic of Korea and the civilian tradition in general.

Will and the legal reserve of inheritance in Korean law

Part V of the Korean Civil Code regulates legal relations in respect of inheritance. Of the three chapters that comprise Part V, the first Chapter stipulates general provisions, thereby governing inheritance in the absence of a will. The second Chapter lays down the legal norms regarding wills, whereas the last of the chapters is dedicated to the ‘legal reserve of inheritance’, the reserved portion in the inherited property of the deceased person. From a comparative law perspective the legal reserve of inheritance is far from an institution unique to Korea. On the contrary, most jurisdictions have legislation that addresses issues of disinheritance in some form or other. The trait that is relatively characteristic of Korean law is that it chooses to strongly protect the right of the legal reserve of inheritance, which in turn results in limiting the freedom of testation. This was a conscious decision made by the legislator in the late 1970s, some 17 years after the Civil Code was enacted and entered into force, when Korean lawmakers inserted a new Chapter on the legal reserve of inheritance into Part V (Inheritance) in an effort to reflect traditional family values that placed special emphasis on family ties. This objective of this paper is to offer an overview of wills and the legal reserve of inheritance in Korean inheritance law. Looking at how the inheritee voluntarily (by means of a will) and involuntarily (by means of the legal reserve of inheritance) disposes of his/her assets after passing away, will hopefully help shed light on some characteristics of Korean inheritance law.