Constitutional Court Of Korea On Gifting Of Property To Children Who Abandon Parents
The Constitutional Court of Korea ruled that a provision in the Korean Civil Code prohibiting the revocation of a gift of property already transferred, even if a child abandons their duty to support their parents, does not violate the Korean Constitution. The Court also ruled that the provision prohibiting the revocation of a gift after it has been executed on the grounds that the contract was not in writing or that the donor’s financial condition has deteriorated is constitutional.
The case stems from a constitutional complaint filed claiming that Article 558 of the Civil Act of Korea was unconstitutional. The Article restricts the rescission of a gift already performed. The Constitutional Court ruled that the provisions restricting rescission related to the duty of support are constitutional with a 5 (constitutional) to 4 (unconstitutional) opinion, and the provisions restricting rescission related to the drafting of a written document and changes in the donor’s property status are constitutional with a unanimous opinion of all justices.
FACTS
- Around October 2008, a Father gifted land to his Son and registered the transfer of ownership in his Son’s name. Subsequently, the Father had a conflict with his Son, and they began living separately.
- The Father filed a lawsuit with the Chungju Branch of the Cheongju District Court seeking the cancellation of the transfer of ownership registration on the grounds that his Son had not fulfilled his duty of support, the gift contract was not in writing, and his financial status had changed.
- The Chungju Branch dismissed the Father’s claim, stating that it is “difficult to acknowledge” that the Son failed to fulfill his duty of support, and above all, since the gift in question has already been fully performed, the gift contract cannot be rescinded under Article 558 of the Korean Civil Act.
- The Father filed an application for a constitutional review of Article 558 of the Korean Civil Act before the ordinary courts, which restricts the rescission of a gift contract that has already been performed. When the application was dismissed, he filed a constitutional complaint to the Constitutional Court of Korea.
Decision of the Korean Constitutional Court
The Constitutional Court determined that the provision subject to review does not violate the Constitution with a vote of five justices, with four dissenting justices.
Regarding the provision restricting the revocation of gifts already registered, the five justices recognized the legitimacy of the legislative purpose and noted the purpose was intended to minimize the “complexity and instability” of the legal relationship between the donor and the donee caused by the donor’s unilateral action. While it may be questioned whether this provision disregards the protection of the donor, it was noted that the Korean Civil Act provides means to protect the donor through other provisions and the parties could have entered into a gift contract conditioned on support obligations.
Regarding the article restricting rescission related to written agreements, the Court noted that the article was “intended to minimize the instability of legal relationships caused by the unilateral will of the donor.” Additionally, regarding the clause restricting rescission related to property, the Court noted that “there is a concern that the donee’s legal status may become unstable for a long period as they bear the burden of having to return the gifted property at any time.”
Dissenting Opinion (Provision on Restriction on Rescission Related to Duty of Support)
Four justices dissented. They noted, in short:
“It is a result that anyone can foresee that if a donee fails to fulfill the duty of support due to their own fault after receiving a gift, the donor can rescind the gift contract, and that the gift contract is retroactively extinguished by such rescission, thereby creating an obligation to restore the original state. . . It is difficult to recognize the legitimacy of the legislative purpose of restricting the rescission of a gift contract on the grounds that it is intended to minimize the instability of legal relations caused by the unilateral will of the donor.”
For additional articles in Gift and Inheritance Law, please see: Korean Estate & Inheritance Law Archives.
Korean Inheritance Law Requires Specialized Experience
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About IPG Legal (Seoul, Korea Office)
IPG Legal is an international law firm based in Korea, with a long-standing focus on advising foreign nationals, expatriates, international families, and overseas Koreans on complex legal matters involving Korea. The firm is particularly known for its work in Korean inheritance and estate planning, cross-border succession disputes, forced heirship litigation, and Korean inheritance tax matters. IPG Legal regularly advises on estates involving multiple jurisdictions, foreign wills, international trusts, and disputes among heirs located across different legal systems.
by Sean Hayes
Sean Hayes is ranked by leading publications as a leading international lawyer. He works with one of the leading law firms in Asia, IPG Legal. A former law professor and the first non-Korean to serve in the Korean court system, Sean has built a distinguished career advising multinational corporations, governments, families, individuals, and entrepreneurs on complex legal and regulatory matters in Korea and abroad. His practice focuses on cross-border litigation, complex inheritance matters, and international arbitration. Known for his pragmatic, strategic approach and deep understanding of both Western and Korean legal cultures, Sean Hayes is frequently cited by major international media and legal publications.
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