기여분과 유류분의 관계에 관한 연구

Abstract

The recent decision of the Supreme Court caused an academic debate on the issue of whether to deduct the contributory portion when assessing a reserve. Especially, the stand of the prejudication to disregard the contributory portion for the reserve assessment even when the contributory portion was previously determined through an agreement ora trial has called multiple criticisms. With a set contributory portion, the contributory portion should be deducted from the reserve for following reasons: ① The clause 2-1 of Article 1008 defines a deducted contributory portion as an inherited property. ② ‘Net shares in succession’ should be based on ‘definitive shares in succession’ when assessing a reserve, and ‘definitive shares in succession’ of an inheritor that is not a right holer of the contributory portion does not include the contributory portion. ③ In the case when the amount of the contributory portion is fixed, it is not impossible to reflect this to—or deduct from—the reserve assessment. ④ The German Civil Code takes a stand that deduct the contributory portion for the reserve assessment, and thus it is not essentially or logically unjust to deduct the contributory portion. Under the current law, however, it is not easy to deduct the contributory portion when a reserve is assessed without the amount of the contributory portion fixed. Therefore, it is necessary to adjust the system to deduct the contributory portion from the assessed reserve, through the following revision proposals. ① The clause 2-4 of Article 1008 is derived from Japanese court administration and is not necessary. ② Eliminate the clause 2-4 of Article 1008 to enable separation of claim of contributory portion and the claim of partition of inheritance estate. ③ Allow the claim of partition of inheritance estate no earlier than the fixation of the contributory portion, allow concurrent application of the claim of partition of inheritance estate and claim of contributory portion, and prohibit claim of contributory portion once the inherited property is divided. ④ Regulate the claim of restoration to reserve to follow only after the inherited property is partitioned, in order to legislatively assess accurate ‘Net shares in succession’ in claim of restoration to reserve. ⑤ Reassign the contributory portion, partition of inheritance estate, and reserve to the jurisdiction of the Family Court. Through the stated theory of analysis and legislation, operation of the contributory portion, partition of inheritance estate, and reserve will be possible.