遺留分返還請求權이 債權者代位權의 目的이 되는지 與否 ―日本에서의 論議를 바탕으로 한 從來 國內의 通說에 대한 批判的 檢討―

Abstract

The prevalent view in Korea on the claim of return for secured portions was that it is not a right which is strictly personal to the obligor, whether in terms of its vesting or its exercise. However the rationale behind such thinking is unclear. In Japan the topic has been the subject of a great deal of debate, with the Supreme Court having ruled against the matter in 2001. Therefore the author shall, in this paper, undertake a critical examination of the view that considers the claim of return for secured portions to be subject to subrogative exercise. Cases and theories in Japan will be used to support the above arguments, thereby concluding that as a rule the claim of return for secured portions, being a right which is strictly personal to the obligor in terms of its exercise, cannot be the subject of the obligee’s right of subrogation to the obligor, unless there are special circumstances that recognize the forfeiture of nature of the right which is strictly personal to the obligor in terms of its exercise. A brief overview of the central arguments is given below. The main reason why Korean Civil Law initially recognizes as valid the succeeded person’s inter vivos disposition or bequest that infringes on secured portions and thereby, on the one hand respects the freedom of disposition of the succeeded person, and on the other hand allows the right holder of the secured portions to exercise his or her claim of return within the short exercise period in order to recover the secured portions, seems to be due to the following - the fact that our law deems it appropriate for the regulation between the personal relationship and property relationship to be determined by the free will of the right holder of the secured portions who is in a personal relationship. Whether the right holders of the secured portions exercise the claim of return will depend not only on their economic considerations but also on their relationships with the succeeded person as well as other co-successors who will be the counter party of the claim for return. Due to the fact that personal considerations play such an important role, the decision of the right holder of secured portions should not be influenced by his or her creditor. Therefore even though the right holder of secured portions may be insolvent, intervention through the obligee’s right of subrogation to the obligor by the creditors in the personal determination of the right holder of secured portions, would infringe on the latter’s freedom of choice, which is also intertwined with his or her personality. This corresponds with the fact that a disclaimer of inheritance cannot be subject to the obligee’s right of revocation. However if there are special circumstances revealing the conclusive intention of the secured portions right holder to assign his or her claim of return, then the subrogative exercise of the claim of return would be possible, given that there is no need to emphasize the personal nature of the right of secured portions in terms of its exercise. However even here it is necessary to determine, based on specific case law, precisely what, including the assignment of the claim of return of secured portions, constitutes an expression of the secured portion right holder’s intention.