유류분반환청구권의 행사기간에 관한 제문제-물권적 형성권설과 채권적 형성권설의 통합적이해를 바탕으로 하여-

Abstract

This paper discusses various issues relating to the exercising period of the claim of return for legally secured portions. Based on assumption that the legal nature of the claim of return for legally secured portions is ‘Gestaltungsrecht’ (German for the right, the holder of which is permitted to unilaterally cause changes in one's and/or other party's legal relationship), this paper delves into the following. The legal nature of the exercising period of 1 year as well as 10 years as provided for in article 1117 of the civil code should be viewed as extinctive prescription, based on a ‘good faith interpretation’ of the provision. In general, whether the exercising period of a certain right is extinctive prescription or ‘Ausschlussfrist’(German for the exercising period of ‘Gestaltungsrecht’ stipulated by law) is a legislative policy matter. Therefore ‘Gestaltungsrecht’ does not necessarily mean that its exercising period is ‘Ausschlussfrist’. Moreover, the prevalent view is contradictory in that it considers the 1-year period as extinctive prescription whereas the 10-year period as ‘Ausschlussfrist’, due to its position that the exercising period of ‘Gestaltungsrecht’ is always ‘Ausschlussfrist’. Article 1117 of the civil code is a stipulation of the exercising period of the claim of return for legally secured portions. Therefore, specific rights that arise out of the exercise of the claim of return for legally secured portions, should be examined separately depending on the legal nature of such rights. In other words, as a result of the exercise of the claim of return for legally secured portions, the claim holder acquires the real right-like claim as well as the claim of return for unjust enrichment in respect of the other party's possession, and the real right-like claim would not lapse by completion of extinctive prescription. On the other hand, in the case where the claim holder of secured portions exercises the claim of compensation in equivalent value against the donee, due to the impossibility of the return of the principal thing, the claim of return for unjust enrichment would lapse by completion of extinctive prescription with passage of 10 years. However even in such a case, the starting point should be not upon inheritance but when the claim of return for unjust enrichment arises as a result of the exercise of the claim of return for legally secured portions.