Key Guarantee of Donor's 'Right to Reclaim'... Discussing Validity by Reviewing Social Impact and Overseas Legislative Cases
[Asia Economy Reporter Baek Kyunghwan] The Ministry of Justice is exploring the possibility of legislating the 'Bulhyoja Prevention Act' (Unfilial Child Prevention Act).
On the 27th, according to the legal community, the Ministry of Justice has begun a comprehensive review of the feasibility of implementing the 'Bulhyoja Prevention Act' and its potential social ripple effects.
The 'Bulhyoja Prevention Act' is a bill that cancels gifts if children who inherit property during their parents' lifetime fail to fulfill their support obligations or subject their parents to abuse or other unfair treatment. It contrasts with the 'Goo Hara Act,' which strips inheritance rights from family members who neglect their child-rearing and support duties.
Unlike the Goo Hara Act, which was approved through the Cabinet meeting last month, the Bulhyoja Prevention Act has been continuously proposed by lawmakers in the National Assembly but has not been enacted due to opposition claiming it "forces filial piety." In September last year, Seo Younggyo, a member of the Democratic Party and chairperson of the Administrative and Security Committee, introduced a representative amendment to the Civil Act including gift cancellation and orders to fulfill support obligations, which is currently under review by the Legislation and Judiciary Committee.
This is why the Ministry of Justice has decided to comprehensively discuss ways and possibilities to recover pre-inherited property and its repercussions. Article 556 of the current Civil Act states, "If the donee commits a criminal act against the donor or fails to fulfill support obligations, the donor may revoke the gift," but Article 558 of the same law states, "The cancellation of the contract does not affect parts already performed." This effectively limits the exercise of the right to reclaim property.
It is also difficult to find precedents where donors won gift invalidation lawsuits. In 2015, the Supreme Court ruled in favor of a father who sued his unfilial son, ordering the son to return the property. However, this was possible because the son had signed a memorandum stating that if the condition of "faithful support" was not met, he would not object to contract cancellation or other measures.
Because they wrote a so-called "filial contract" clearly specifying each party's obligations, the contract cancellation was accepted. At the time, legal circles interpreted that if the father had left a memorandum simply stating "I will give you the property" without any conditions, it would have been considered a simple gift rather than a gift with burdens, and the property could not have been reclaimed.
Accordingly, the Ministry of Justice plans to analyze changes in the current gift system and social ripple effects on a case-by-case basis and to examine from multiple angles whether the state has the right to intervene in private relationships between parents and children, such as gifts. Overseas legislative examples are also under review. Currently, most countries including Germany, Switzerland, Austria, and France have regulations allowing the reclamation of gifted property.
A Ministry of Justice official said, "It is necessary to amend the Civil Act to eradicate unfilial and immoral acts by donees and to respect the donor's intention by allowing the reclamation of already gifted property. However, since legal amendments may cause side effects, we plan to carefully review various cases in advance to consider the appropriateness of the amendment."
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