상속분가액지급청구의 범위

Abstract

The legal nature of the claim right for payment of the amount equivalent to portion under Article 1014 of the Civil Act should be considered as a claim right for division of inherited property. However, when determining the scope of the claim, it should be interpreted in a form that conforms to the payment of the amount, and the legal principle of claim for return of unjust enrichment should apply. The specific results of the analysis on the scope are as follows. First, the valuation time of the unjust enrichment subject to be returned should be based on the time of realistic payment of the amount. Second, the fruits arising from the inherited property are also included in the scope of valuation, and therefore, a claim for return of unjust enrichment is possible. Third, from the time at which the affiliation or trial confirmation becomes known to co-inheritors and from the time at which co-inheritors receive a claim for payment of inheritance equivalent to a portion from the affiliated, whichever occurs first, the co-inheritors are considered as a person enriched in bad faith. Therefore, it is necessary to return the amount equivalent to the present value at that time, plus interest from that time until the actual payment date, and if there is any damages, compensation should also be made. Fourth, in the case where the inherited property is disposed of without division or before division, it is reasonable to claim for payment of the amount equivalent to portion as the meaning of the vicarious compensation division only for the disposed property and divide the remaining property based on specific inheritance portions. Fifth, since the inheritance obligation is not the subject of inheritance property division, the scope of claim for payment of the amount equivalent to portion applies only to the positive property.