유류분과 기업승계-우리 유류분 제도의 비판적 고찰

Abstract

This paper points out that Korea’s current forced share (legal reserve) system can cause inefficiency during the succession of a deceased’s enterprise, and proposes measures for improvement from the perspectives of de lege lata or de lege ferenda. Loopholes in Korea’s forced share system is attributable to the followings: (i) some portion of inheritance estate may be forcibly divided regardless of the explicit intent of the deceased; (ii) inheritors may go against the previous succession plan and claim right to the legally secured portions for opportunistic reasons; and (iii) risks associated with changes in the value of property received as a gift (special benefit of inheritance) may be unduly passed on to the party legally obligated to return the secured portion. Such downsides can be improved from a de lege lata perspective: (a) Courts should have discretion to order the “return of the equivalent value of legally secured portions” by comprehensively factoring in the circumstances, albeit restitution in natura is possible. (b) In cases where a co-inheritor disposed of the property received as a gift before the deceased’s death, the forced share should be calculated based on the said property’s market value at the time of disposal. Improvements in the system’s weakness are also feasible from a de lege ferenda perspective: (a) Just like in cases where the deceased’s property is given as a gift to a third party, whether property received as a gift by a co-heir is subject to the return of forced share should be determined depending on the period when the co-heir received the said property. Furthermore, property received as a gift by the person entitled to the forced share should be excluded with a time limit when calculating the value of the forced share. (b) Advance renunciation of the forced share should be permissible under a specific process or method.