[Chatting] Husband who ran away from home with children who were victims of violence and died during divorce proceedings...What about inheritance of property?

□ Broadcast date and time: October 17, 2024 (Thursday)
□ Host: Attorney Cho In-seop
□ Cast: Attorney Jeong Du-ri

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.
◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): When playing Go, a trainer who is watching from a distance one step away often points out a trick. It is said that the reason why the spectators see a great number is because they look at the checkerboard one step away without the burden of winning or losing, so why don't you look at the complicated things one step away? Lawyer Cho In-seop's Counseling Center will open now.

◇ Jo In-seop: Lawhouse for you, with lawyer Jung Du-ri.

◆ Lawyer Jung Du-ri (hereinafter referred to as Jung Du-ri): Hello, I'm lawyer Jung Du-ri of Shinsegae Law Firm.

◇ Jo In-seop: Let's first see what kind of concerns you have if you come to the counseling center today.

□ Reporter: My husband and I first met at a construction company. I was an accountant and my husband was an employee. My husband actively courted me, and my colleagues kept encouraging me, so I got married in a hurry. I left the company shortly after I got married, and I had two children as a year old. But…... There was something I didn't know before I got married. My husband had injections of verbal abuse and assault whenever he drank. Still, I've never reported it to the police because I'm friendly with my children and have a decent job. But my husband's injection got worse as time went by. By the time the children entered elementary school, they were even shouting at home for a day. As the children of elementary school began to take sides,
The husband even verbally abused the children. I ran away with my kids because I thought my husband would touch them. And I didn't have any money on hand, so I filed for divorce without the help of a lawyer. The husband, who received the complaint, didn't respond to the lawsuit at all and went to the school where the children attended and committed a crime. My husband, who was so wicked, died in a sudden accident. How will the lawsuit proceed in this case? I was in the middle of a divorce, and would I be able to inherit my husband's property?

◇ Cho In-seop: Attorney Cho In-seop's Counseling Office Today was the story of a person who experienced his spouse's death during a divorce lawsuit. I think you'll be so frustrated.

◆ Jungdu-ri:

◇ Jo In-seop: If one of the parties dies during divorce proceedings, will the proceedings continue?

◆ Jung Du-ri: The right to claim divorce by trial is the exclusive right of the couple, so if one of the spouses dies during the continuation of the divorce lawsuit, the heir cannot take over the proceedings, and there is no provision under the current law for the prosecutor to take over the lawsuit, so the divorce lawsuit is terminated. If the claim for division of property was also filed with the Family Court in combination with the divorce claim, the claim for division of property will also be terminated. The property division claim is based on the premise that a divorce is established, and since the divorce lawsuit is terminated, there is no real benefit to maintain the property division claim, so it ends at the same time as the divorce lawsuit ends. Usually, if one of the spouses dies while continuing the divorce lawsuit, the plaintiff will go through a revocation procedure.

◇ Jo In-seop: Is the person who filed for divorce also granted inheritance rights?

◆ Jung Du-ri: If one party dies during the divorce proceedings, the divorce is not made. As mentioned earlier, the divorce lawsuit was terminated due to the death of one of the parties. In this case, the other party is the spouse of the deceased and is naturally placed in the position of heir unless there is a reason for disqualification from inheritance. Therefore, it will go through the process of dividing the inherited property with other legal heirs as the status of the heir, not the right to claim the division of the property.

◇ Cho In-seop: In the process of dividing the inherited property, there is a conflict of interest between you and your underage children, right?

◆ Jung Du-ri: Yes, Article 921 of the Civil Code stipulates that if a legal representative, a parental authority, engages in a legal act that conflicts of interest between himself and his child, who is a minor following his/her parental guidance, the parental authority must request the court to appoint his/her special representative. Conflict of interest refers to an act that is beneficial for a person with parental authority and disadvantageous to a minor child.

◇ Cho In-seop: How do you judge conflict of interest?

◆ Jung Du-ri: There are conflicting opinions on the criteria for determining whether it is a conflict of interest, but our court must objectively judge according to the appearance of the act itself and does not consider the intention or motive of the parental authority or whether the act actually caused a conflict of interest (the Supreme Court sentenced on November 22, 1996 96da10270). As in the case, if the parental authority and the minor children become joint heirs, the joint inheritance division consultation is an act that is likely to cause conflict of interest between the heirs due to the objective nature of the act, so in the case of a discussion on the division of inherited property between the parental authority and the number of minors, a special agent is appointed for each minor to discuss the division of inherited property on behalf of each minor (the Supreme Court sentenced on April 13, 1993 to 92da54524).

◇ Cho In-seop: How about the process of appointing a special representative?

◆ Jung Du-ri: Yes, the (claimer) parental authority or guardian may request a special agent appointment trial to the Family Court where the child or guardian is underage. At this time, the court will examine whether it is a conflict of interest and whether it is qualified and qualified for the appointment of a special agent. As there are no explicit restrictions on the qualifications of the special agent, such as the reasons for disqualification of the guardian, it is in principle left to the discretion of the family court and is not bound by the wishes of the claimant. In general, a person who is well aware of the property situation, family environment, and relationship with a parental authority of a minor child is appointed as a special agent who is expected to act for the benefit of a minor child, and in practice, the person who the claimant wishes or recommends is mainly appointed as a special agent.

◇ Cho In-seop: But before he died, the other person said he verbally abused his children and went to school and committed a crime, and I think there are people who are going through similar things. Is there a way to prevent it in advance?

◆ Jeong Du-ri: The other party usually verbally abused and assaulted the person, and recently verbally abused his/her children. He/she reports to the police for domestic violence and child abuse. In the process, he/she applies for temporary measures such as prohibition of access within 100 meters from the victim or family member or his/her residence or workplace pursuant to Article 29 of the Special Act on the Punishment of Child Abuse Crimes, or applies for temporary measures such as prohibition of access within 100 meters from the residence, school, or shelter of the victim child, etc. pursuant to Article 19 of the Special Act on the Punishment of Child Abuse Crimes, or after filing a divorce lawsuit, designation There is a way to apply for a ban on access, etc.

◇ Jo In-seop: Now, to summarize what we've done so far... If a spouse dies during a divorce suit, the suit will be terminated and the property division claim will also be terminated. After the divorce lawsuit is terminated, the person in question has the right to inherit and will proceed with the division of the inherited property with other legal heirs. The parental authority must request a special representative for the child from the court because conflicts of interest occur between the person concerned and the minor child in the process of dividing the inherited property. The judgment of conflict of interest is made objectively by the court and does not take into account the intentions or consequences of the parental authority. A special representative can be requested by a person with parental authority or guardian and is mainly appointed as a person who knows the situation of the child. If you visit your children's school and act like your husband, you can file a police report and apply for temporary measures to ban access. So far, I've been with lawyer Jung Du-ri.

◆ [Jeong Du-ri] Thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube. If you have any questions or suggestions, please comment.