상속분 조정 제도의 본질과 몇 가지 쟁점

Abstract

With the acceleration of social aging, the weakening of family relationships and the concept of family property, and the strengthening of the concept of personal property, the need for the inheritee to procure support and nursing care for himself and his spouse during the lifetime with his property has increased, and the inheritee’s desire for efficient succession of his property has also grown. On the other hand, the family solidarity, which is the basis for the legal reserve of inheritance, is weakening, and there is a growing need for contribution compensation regardless of the status of heirs. The social necessity to more actively reflect the intent of the inheritee is increasing. However, according to Korean Civil Act, it is impossible to abolish the heir or designate the shares of inheritance according to the will, and it is not clear whether the adjustment of special beneficiary can be exempted. The freedom of the will is largely suppressed. The Supreme Court of Korea, in its 2010da66644 judgment sentenced on December 8, 2011, stipulated that ‘the ratio of the portion given by the inheritee as an advance payment of the inheritance should be evaluated and judged’, in substance, drew a flexible conclusion similar to recognizing the exemption from the adjustment of special beneficiary. In principle, the portion excluded from the special benefit is not added to the basic property for calculating the legal reserve of inheritance, and it should be considered that the legal reserve of inheritance is calculated accordingly. By actively recognizing the exemption from adjustment of special benefit, it is desirable to make flexible and reasonable adjustments to the inheritance share in a way that alleviates the rigidity of the current rules regarding the contributory portion and the legal reserve of inheritance, thereby sufficiently secures the realization scope of the inheritee’s intent.