상속개시 전 증여재산이 처분된 경우와 유류분 산정시 증여재산의 가액산정 시점 - 대법원 2023. 5. 18. 선고 2019다222867 판결의 검토 -

Abstract

In the Supreme Court decision 2019Da222867 issued on May 18, 2023, the value of each land in the case (which was the donated property) increased greatly after the land use zoning was changed after the taking of the land through eminent domain. The person who was gifted the land did not get to enjoy the value of the land price increase at all, and the issue was whether it was appropriate to calculate the value of each piece of land based on its value at the time of the commencement of the inheritance, as was the case in the previous Supreme Court ruling. Regarding this issue, this paper takes a position that while the theory of the timing of the disposition is applied, the merit of the theory of the commencement of the inheritance which allows the consistency of the legal theory cannot be ignored. If there is a method of resolving the issue of the consistency of the legal theory while the theory of the timing of the disposition is applied, and a method of reconciling it with the theory of the time of the commencement of the inheritance, such a method should be taken into account. If we apply it to the Supreme Court decision 2019da222867 issued on May 18, 2023, a method may be used whereby the value of each land in this case at the time of the taking, which was a rice field at the time of the gift, may be converted into the value as of the time of the commencement of the inheritance, by applying the price change index. This approach would be reasonable since it appears that the Supreme court decision 2019da222867 issued on May 18, 2023 adopted such an interpretation to harmonize the theory of the time of the disposition and the theory of the time of the inheritance commencement, too. The Supreme court decision 2019da222867 issued on May 18, 2023 is significant in that it adheres to the theory of the time of the commencement of the inheritance (which is in principle the theory of timing the calculation of the value of the donated property), while providing a balanced interpretation to minimize the irrationality which may arise from following the theory of the time of the inheritance commencement. Moreover, the Supreme Court decision 2019da222867 issued on May 18, 2023 is meaningful in that it was the first case to clearly state the position on the method of calculating the value of a donated property when it was expropriated before the start of the inheritance, and subsequent decisions may be affected by it.