상속재산의 과실

Abstract

Between the time when the decedent dies and the inheritance is divided, it is a kind of transitional period in the process of liquidation of the inherited property. This period has a similar character to that when the bankruptcy proceedings were initiated. The fruits received during this period are included in the inherited property and should be considered to be subject to division of the inherited property. Normally, the heirs will be able to agree on the attribution of fruits while negotiating the division of the inherited property. If an agreement is reached, the court must provide the standards. Based on the specific inheritance portion, the ratio is determined by reducing the bequest and gift portion from the legal inheritance portion (original inheritance portion). According to Article 1079 of the Civil Act, the fruits arising from the subject of bequest belongs to the beneficiary from the time of the death of the decedent. Before the inherited property is divided, the fruits arising from the inherited property must be kept separately, and the heir or the executor should not acquire it unilaterally. Because the inherited property is in the process of liquidation, there can be no bona fide occupant who can acquire fruits for it. What to do if a will is discovered after the inheritance has been divided. From the time of division of the inherited property, the heir or comprehensive beneficiary can trust that he or she can acquire the fruits of the devolved property according to the contents of the division. He or she is a bona fide occupant. Therefore, the fruits should be returned to the bequest beneficiary only from the point of conversion of the heir to the malicious occupant. When it comes to a refund request for legal reserve of inheritance(Civil Act art. 1112), there are many cases where the special beneficiary is unaware that the legal reserve of inheritance has been infringed. Therefore, it is reasonable to assume that the special beneficiary can receive the fruits until there is a request for the return of the legal reserve of inheritance. The same is true if the special beneficiary was well aware of the inheritance infringement. This is because, in many cases, the heirs do not exercise the request for the return of the legal reserve of inheritance. Since the special profit itself is based on the will of the decedent, it is still reasonable for the special beneficiary to acquire the fruits that occurred until a request for the return of the legal reserve of inheritance is made. How about the claim for recovery of inheritance(Civil Act art. 999)? The person who pretends to have the right of inheritance has a similar character of the possessor property of Civil Act art. 201. The only difference is that the cause of its possession is in the appearance of inheritance. Therefore, it is considered that the provisions of Articles 201 and 748 may be applied to this issue regarding the return of fruits. In the case of a request for recovery of inheritance after the division of the inherited property has been completed, the person who pretends to have the right of inheritance acquires the fruits of the property in the case of good faith, but in the case of malice, he must repay the fruits received and the fruits not received because of his negligence(Article 201 (1), (2)). In the case of problems with services or money, if the person who pretends to have the right of inheritance is in good faith, he can return the existing profits (Article 748 (1)). Otherwise it must be returned, and if there is any damage, it must be compensated(Article 748 (2)).