배우자 특별수익에 관한 하급심 실무동향 및 분석 ―배우자의 상속권 보장을 중심으로―

Abstract

Under the existing civil law, spouse’s right of inheritance is not likely to be properly protected for the following reasons: surviving spouse’s shares of statutory inheritance has a considerable difference from the division of property caused by divorce, exception rules for spouse’s special benefit have not been made, and acceptance requirements for spouse’s contributory portion to support are strict. However, inheritee’s will needs to be more respected in that inheritee’s bestowal or bequest to spouse is likely to have reflected spouse’s community property formation or support. To the same effect, the Supreme Court decided that if spouse’s property received contains compensation or evaluation for spouse’s contribution or effort, liquidation of substantial community property, and performance of obligation of support, this is not a special benefit. Nevertheless, the judgement by the lower court on spouse’s contributory portion and special benefit has ambiguous criteria, is inconsistent and less predictable, and has limitations in examining evidence or difficulties in fact finding and difference in judge’s empirical rule and value judgement, which causes judges to draw different conclusions. For such reasons, the legal system that was intended to promote substantial equity between co-inheritors may cause inequality between co-inheritors or infringe spouse’s right of inheritance severely. Therefore, the theory of legislation that to guarantee spouse’s right of inheritance, the existing civil law should be revised in the direction of introducing such methods: considering inheritee’s explicit intent of return exemption on the preferential basis or increasing spouse’s share of statutory inheritance instead of dividing the inheritance share depending on contributory portion and special benefit is getting persuasion.