우리민법상 배우자 거주권의 입법론적 제언

초록

In recent years, Korea has entered an ultra-elderly society, and in such a situation, when the head of the household dies, how to solve the housing problem of the surviving spouse is an issue. In practice, this issue arises in two types of cases: the first is when heirs other than the surviving spouse obtain a majority of the inheritance and evict the surviving spouse from the residential property. In this case, the court tries to solve this type of problem by preempting the claim of the surviving spouse’s right to use the residential premises with the claim of a gratuitous use lease between the decedent and the surviving spouse, but since this is a use lease with no fixed term, there is still a limitation in that the heirs can terminate the use lease with the surviving spouse on the grounds that the “period sufficient for use and profit” specified in Article 613, paragraph 2 of the Civil Code has elapsed. The second type of case is where the heirs have agreed that the residential property should be owned solely by the spouse for the spouse’s housing security, but the heirs' general creditors cancel the agreement by exercising their right to cancel creditors on the grounds of bad faith (Article 406 of the Civil Code), thereby increasing the surviving spouse’s housing insecurity. In this case, the court is cautious about recognizing the surviving spouse as a beneficiary of bad faith, recognizing that it is not uncommon for heirs to enter into agreements that recognize the surviving spouse's ownership of the residential property in order to ensure the surviving spouse's housing security. However, as courts will decide this on a case-by-case basis, there is no predictability for the surviving spouse in this type of case, and ultimately the issue of housing security for the surviving spouse remains. In addition, the number of inheritance-related disputes among the general population continues to increase, and among elderly households, real estate accounts for 81.3% of their assets, making inheritance centered on real estate. Considering these factors, it is difficult to expect a resolution through voluntary consultation within the family, such as the proper distribution of inheritance shares. As a result, existing court interpretations and consultations with heirs, including surviving spouses, are not enough to resolve this issue. To solve this problem, it is necessary to legislate the right of residence of the surviving spouse under Korean civil law. Therefore, this article attempts to propose a legislative proposal for the right of residence of the surviving spouse in order to reduce inheritance- related disputes and promote the residential stability of the surviving spouse by harmonizing the expectations of the surviving spouse, the economic interests of the heirs, and the interests of the decedent and the general creditors of the heirs. To this end, this article conducts research in the following order: first, it establishes a framework for legislation by identifying the specific direction in which legislation should be enacted in the event that Korea enacts a surviving spouse’s right of residence system. Then, based on this, we proposed a specific legislative proposal for the surviving spouse’s residency system

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