유류분의 헌법적 근거변화에 따른 유류분제도의 개선 방향

Abstract

The modern age is an age of aging, low fertility and low growth. In particular, how to overcome the problem of supporting the elderly has emerged as a serious social problem. In order to solve the problem of supporting the elderly by efficiently utilizing the limited goods of inherited property, the property must be distributed in the right place. Although the forced share institution plays an important role in the distribution of inherited property, there has been no change in the legal provisions for over 40 years since the introduction of the institution. Therefore, the need for change is increasing. Theoretically, the family is not a productive community, and the sense of solidarity between families is also weakening. In reality, the interest of the person who has the right to receive the forced share is focused on how much property value can be recovered from the person responsible for returning the property, rather than how the original property will be returned. In modern society, it is more reasonable to look for the constitutional basis for the forced share institution in Article 23 Paragraph 1 of the Constitution, which guarantees the property rights, rather than Article 36 Paragraph 1 of the Constitution, which guarantees the family institution. In this case, the legislator has a wide range of freedom to form legislation according to the precedent of the Constitutional Court. Legislation can be enacted to flexibly operate the forced share institution in order to increase the utility of society as a whole through the distribution of inherited property. The phenomenon of recognizing forced share as value is the result of rational thinking of the heir. Unless the constitution strongly protects the forced share institution even at the cost of inefficient distribution of goods, it is desirable that the forced share institution should be improved in a way that helps for the efficient distribution of the goods. It is desirable that the direction of the improvement of the forced share institution proceeds in a form that respects the freedom of the decedent's property disposal and the principle of return of value would be an example. However the function of supporting the heir is still important in modern society. the direction of improvement of the forced share institution should be determined to restrict the freedom of the decedent's property disposal through the forced share institution when the function of supporting the heir who has not received the inherited property is damaged due to the unbalanced distribution of the decedent.