The Goo Hara Act: Restricting Inheritance Rights from Those Who Have Failed Their Familial Duties

The Goo Hara Act:

Restricting Inheritance Rights from Those Who Have Failed Their Familial Duties

 

Abstract

The Ministry of Justice released to the press the pre-announcement of the Civil Act regarding the inheritance rights of inheritors who have failed to fulfill their duty of support. More publicly known as the Goo Hara Act, the amendments are a direct result of the late singer Goo Hara’s death and the legal dispute between her brother and her biological mother. The biological mother, who had abandoned the two siblings when they were at a very young age, claimed that 50 percent of late Goo’s remaining assets were rightfully hers, as it is stated in the Civil Act that the lineal ascendant is guaranteed 2nd in succession. Based on the current Inheritance Act, as Goo is not married and without children, the biological mother can claim 50 percent of the inheritance along with the biological father, who has solely done his parental duty in raising the siblings. The preexistent systems in the Civil Act were ineffective in excluding parents of their inheritance shares when they did not fulfill their duty of support. The “Disqualification of Inheritance Rights” was a system that only disqualified the rights under specific unethical circumstances. Moreover, it did not allow individual claimants to go under trial whether they were qualified or to be given a chance to restore their rights if they have been forgiven by the decedent. The “Contribution System” acknowledged those who specially supported the decedent but is still inappropriate to apply to cases such as Goo, as it only allows “special” support of inheritors to be acknowledged and possibly overlooks those who have contributed. The amendments of the Civil Act regarding the Inheritance Act will allow restricting negligent parents who have failed their parental duties, as shown in Goo’s case. Three main changes are made in the law. The first is implementing a new system of “Restriction of Inheritance Rights”. It is different from the “Disqualification of Inheritance Rights” in that it allows the claimants to be trialed before a Family Court Judge on whether they should be restricted from their rights. The second is implementing a system in the “Restriction of Inheritance Rights” in which the inheritors can be restored of their inheritance rights if they have been forgiven by the decedent. The third is revising the “Inheritance by the Representation” system. If “Inheritance by the Representation” is applied to the inheritors who have been restricted from their inheritance rights, it will be discordance to the purpose of the amendment. Hopefully, the changes in the Inheritance Act will be able to enforce the parents their duty of support and as a result, protect inheritors who have fulfilled their familial duties.

 

I. Introduction

On January 7, 2021, the Ministry of Justice released to the press the pre-announcement of the legislation regarding the amendments of the Civil Act. Publicly more known as the Goo Hara Act, the amendment of the Inheritance Act consists of taking away the right of inheritance from those who have failed their duty of support to the decedent, hopefully ensuring parental duties to support their underaged children and penalizing those who have neglected their responsibilities.

The national attention toward the inheritance law arose when the singer Hara Goo met a tragic and untimely death last November. The biological mother who abandoned Goo and her brother when Goo was only 9, showed up after years of negligence to “claim her 50% share of the late singer’s remaining assets”.[1] Goo’s brother has since fought in a legal battle to claim the right for himself and his father who solely raised the two siblings. He also started a national petition to amend the current Civil Act, which allows family members to claim their share of inheritance regardless of their failure to fulfill their familial duties. According to the current Civil Act, because the singer was not married, the lineal ascendants of the decedent are first in line to succeed in equal proportion, allowing the mother to claim 50 percent of the remaining assets.

The case of Goo indicates a chronic problem of the Inheritance Act. Similar cases regarding the right of inheritance have been occurring repeatedly, such as in the case of the Cheonan Warship battle, or the breakdown of Gyeongju Resort. The biological mothers and fathers who had abandoned their children at a young age, showed up after their deaths to claim their share of compensations or pensions for the bereaved family.[2] Up until Goo’s case, most civil litigations regarding the inheritance rights of family members who neglected their familial duties allowed them their share of the inheritance as required by the Civil Act.

However, in the recent civil litigation by Goo’s brother, the case was decided in favor of the plaintiff, as the judge recognized the sole contribution of Goo’s father in raising the two siblings and ruled the assets to be divided 6 to 4 in proportion.[3] Although it is an unprecedented case and definitely a major step forward, there is still a need for an amendment of the current Civil Act to ensure the familial solidarity and to allow family members to be exempt from inheritance if they fail their responsibility.

 

II. Definition of Familial Duties

The current Civil Act does not specify the rights and duties of family members in express terms. However, the duties as husband and wife (Civil Act 826.) and as parents (Civil Act 837, 913.) are normally understood as protecting and supporting one another to the degree of supporting oneself.[4]

 

III. Current Law Regarding the Right of Inheritance

  1. Systems in Civil Act

Under the current Civil Act, in an attempt to ensure the parental duties, when divorced, the parent who does not fulfill his or her parental duty is required to pay the former spouse support fees to raise the children, or else his or her parental authority is lost. However, due to the main principle of honoring blood kinship, even if the parent fails to support or does not pay the support fee, the parent is still eligible for the right to inherit from the deceased child. In other words, even if the divorced parent does not pay the support fee or abandons his or her children, there is no restriction toward receiving the inheritance. This legal mechanism exhibits serious injustice for the decedent and the bereaved family members who have fulfilled their duty of support diligently.[5]

Even prior to the amendments of the Civil Act, there have been systems that disqualify heirs from their right to inherit or allow a bigger proportion of the inheritance share under certain circumstances. The law aims to ensure familial solidarity by exempting those who fail their duties to support the family members and by recognizing those who contributed to supporting their family members.

 

(1) Disqualification of Inheritance Rights

The current Civil Act disqualifies a person who committed unethical acts toward the decedent (Civil Act Article 1004.). It is an automatic disqualification without trial if the inheritor falls under one of the 5 reasons for disqualification. The reasons for disqualification include killing or attempting to kill the inheritee or any person who has priority to inherit, intentionally assaulting the inheritee, or actions to forge, alter, destroy, or conceal the will of the inheritee. (The term ‘inheritee’ refers to the decedent, according to the Korean Civil Act.)

 

(2) Contribution System

The Contribution System aids the inheritor who “has specially supported the inheritee through sharing living accommodations or provided nursing, etc. for a considerable period or has especially contributed to the maintenance or increase of the property of the inheritee” (Civil Act Article 1008-2.1.).

 

(3) Limitations of the Current System

The problem regarding the current Civil Act is that it fails to acknowledge specific cases of the parents who abandon their children at a young age, such as the case of Goo. The system that disqualifies inheritance rights only acknowledges unethical crimes committed to the inheritee, and those not categorized in the law are not considered reasons to disqualify the right to inherit. Moreover, even if the failure to perform familial duties is included in the reasons for disqualification under Civil Act Article 1004., the automatic disqualification without a trial does not allow other family members to forgive the person claiming the inheritance or carefully evaluate whether the family member actually neglected his or her duty. The characteristics of familial duty are differentiated from other reasons for disqualification in Civil Act Article 1004., in a sense that the negligence of parental duties varies in each individual cases, and that there is a need for trial to evaluate whether the parent actually failed his or her duty.[6]

The Contribution System which aids those who have specially supported the inheritee is also problematic. “Specially supported” is specifically in express terms under Civil Act 1008-2.1., and the parental duty is hardly seen as ‘special,’ as it is a natural duty of parents to raise their children.[7] Examples of “specially supported” are working for the inheritee without being paid, providing financial support to the inheritee’s business, and nursing the inheritee for a certain period of time.[8]

 

  1. Amendments of the Public Official Pension Law

The National Assembly passed the amendments of the Public Official Pension Law on December 1, 2020, which restrict the bereaved family member from rights to the compensation if they have failed their familial duty of support (Public Official Pension Law Article 63. 4.).[9]

This amendment takes away the right to pension or compensation of those who have failed their parental duties and supplements the current Civil Act that lacks such system.

 

IV. Amendments to Penalize Those Who Have Failed Their Parental Duties

  1. The Goo Hara Act: Amendment of the Civil Act

The Ministry of Justice announced the pre-announcement of legislation regarding the Inheritance Act. It stated that it aims to restrict the inheritor the right of inheritance if he/she has neglected their duty of support or has a history of abusing the decedent.

 

(1) Article 1004-2.

‘Restriction of Inheritance Rights’ is a system that allows the Family Court to decide whether to restrict the inheritors’ inheritance rights if they have abandoned, mistreated or abused the decedent. It is different from the preexisting ‘Disqualification of Inheritance Rights’ (Civil Act Article 1004.) in that it allows the judge of the Family Court to evaluate each case and allow each inheritor to assert his or her stance.

 

(2) Article 1004-3.

This article allows the inheritors who have lost their rights of inheritance to regain their rights if they have been forgiven by the inheritee.

 

(3) Revision of the ‘Inheritance by Representation’ System

‘Inheritance by Representation’ is a preexisting system in which the inheritor is dead or is disqualified to inherit, so the spouse or lineal descendant is allowed the right to inherit instead. ‘Inheritance by Representation’ is a practice that aids the spouse or lineal descendant of the disqualified inheritor under certain circumstances. Considering the purpose of the amendment, ‘restriction of right to inherit’ is not added as a reason to ‘inherit by representation.’

 

  1. Expected Effects of the Amendment

The law before the revision had its limits as it did not acknowledge the disadvantages of minors who weren’t supported by their parents. Most children who die young are unlikely to have left a will to specify the rights of inheritance, and after their death, are more likely to have their parents be documented as their legal guardian.

The amendment of the Inheritance Act will now allow the remaining family members or other inheritors to claim their rightful share, and more likely to honor the will of the decedent.

However, concerns regarding the definition of ‘familial duty’ still remain, as it is a relative term and is difficult to specifically define what these duties are. In the past, in an effort to address the inheritance rights issue, the lawmakers have introduced series of laws. In the previous 20th National Assembly, 5 legislative bills regarding the amendment of inheritance rights were proposed but were discarded due to the concern that ‘being negligent to one’s familial duties’ is a relative notion. Many experts in the legal field showed concerns because it can threaten legal stability and can easily provoke legal disputes. This concern still remains regarding the amendment and will likely become a controversial topic in cases regarding the new law.

 

V. Conclusion

The case of the late Goo and her family attracted national attention, resulting in a petition of restricting inheritance rights. Over 100,000 people signed the petition in hoping to find justice for the remaining family. The national attention resulted in the pre-announcement of the legislation, and also pointed out a chronic problem that has long existed in the Inheritance Act.

The new amendments of the Civil Act will hopefully restore the rights of inheritors from those who have failed their familial duties and ultimately honor the will of the decedent.

 

 

 

 

 

References

Belmis, Victoria. “Hara’s Mother Might Not Get Inheritance As National Assembly Passes ‘Goo Hara

Act’.” Korea Portal 5 December 2020. http://en.koreaportal.com/articles/47444/20201205/hara-s-mother-might-not-get-inheritance-as-national-assembly-passes-goo-hara-act.htm. Accessed 25 January 2020.

Choi, Hyun-sook. “Regard to strengthen the duty of supporting for children through the connection with inheritance.” Journal of Theory and Practics of Private Law Vol.7 No.1 (2014): 183-219.

Kim, Kang Han. “A Father Who Disappeared Shows Up After 20 years to Claim His Inheritance Share of 100 Million Won for Cheon An Battleship Victim.” Chosun Media 2 September 2010. https://www.chosun.com/site/data/html_dir/2010/09/02/2010090200050. html. Accessed 25 January 2020.

Kim, Sang-Mook, Youn, Sung-Ho. “A Study on the Contribution System in the Civil Law.” Journal  of Korean Regional Development Vol.4 No.1 (2004): 59-75.

Nam, Ka Uhn. “Goo’s Father Acknowledged Sole Contribution.” Law Times 22 December 2020. https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=166744. Accessed 25 January 2020.

Park, Ji Won. “Legislative Consideration on the Inclusion of Child Abandonment in Statutory Bar to Inheritance.” The Law Research Institute of Hongik Univ. Vol. 21 No.3 (2020): 219-250.

Park, Sol Ip. “The National Assembly Passed 51 Bills Including Goo Hara Act.” Law Times 1 December 2020. https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=166217. Accessed 25 January 2020.

 

 

 

 

 

 

 

 

 

 

[1] Belmis, Victoria. “Hara’s Mother Might Not Get Inheritance As National Assembly Passes ‘Goo Hara

Act’.” Korea Portal, 5 Dec. 2020, http://en.koreaportal.com/articles/47444/20201205/hara-s-mother-might-not-get-inheritance-as-national-assembly-passes-goo-hara-act.htm.

[2] Kim, Kang Han. “A Father Who Disappeared Shows Up After 20 years to Claim His Inheritance Share of 100 Million Won for Cheon An Battleship Victim.” Chosun Media, 2 Sep. 2010, https://www.chosun.com/site/data/html_dir/2010/09/02/2010090200050.html.

[3] Nam, Ka Uhn. “Goo’s Father Acknowledged Sole Contribution.” Law Times, 22 Dec. 2020, https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=166744.

[4] Park, Ji Won. “Legislative Consideration on the Inclusion of Child Abandonment in Statutory Bar to Inheritance.” The Law Research Institute of Hongik Univ. Vol. 21 No.3 (2020): 219-250.

[5] Choi, Hyun-sook. “Regard to strengthen the duty of supporting for children through the connection with inheritance.” Journal of Theory and Practics of Private Law Vol.7 No.1 (2014): 183-219.

[6] Ibid. at 206.

[7] Ibid. at 201.

[8] Kim, Sang-Mook, Youn, Sung-Ho. “A Study on the Contribution System in the Civil Law.” Journal of Korean Regional Development Vol.4 No.1 (2004): 59-75.

[9] Park, Sol Ip. “The National Assembly Passed 51 Bills Including Goo Hara Act.” Law Times, 1 Dec. 2020, https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=166217.

Posted in 2021, Spring 2021.