공동상속인 간의 유류분 반환과 특별수익 —헌법재판소 2010.4.29.선고 2007헌바144결정을 중심으로—

Abstract

The minority opinion of the ruling of the Constitutional Court of Korea stated that Civil Law Article 1008 on the inheritance portions of a special beneficiary applied mutatis mutandis on legally secured portions, and that therefore, on the scope of property included when calculating the legally secured portions pursuant to Article 1113 of the Civil Law, omitting the application of Article 1114 of the Civil Law would be swaying from the intent of Article 1114 of the Civil Law and the mutatis mutandis application of legally secured portions of Article 1008 of the Civil Law. However, when interpreted as such, it is inevitable for a considerable portion of the goal of the legally secured portions system for󰡐maintaining fairness among coheirs’ to be diminished. This is because if the inheritee gives just a part to a coheir one year before inheritance, unless it is proven that such gift was made with the person entitled to legally secured portions knowing that such gift would do harm to him/her, it would result in such donated property from being excluded in the base property for calculating the legally secured portion. Legally secured portions restrict the freedom of disposal able to make a form of joint inheritance futile by gifts or bequeathals to a certain coheir, and execute the functions for procuring equality among coheirs, and this is one aspect of family life protection guaranteed by Article 36 clause 1 of the Constitutional Law.󰡐Equality’ that is mentioned here means to formally treat as equal regardless of the circumstances of the inheritor or the relationship between the inheritee and inheritor. In other words, it refers to󰡐formal’ equality. The legally secured portions system legally guarantees the acquisition for a certain portion of inherited property for the person entitled to legally secured portions regardless of the individual and actual circumstances for the gift or bequeathal in the event that the legally secured portions are violated due to gifts or bequeathals by the inheritee, and is significant in the fact that it aims for a formal equality among coheirs. In order to achieve ‘actual’ equality among coheirs taking into account the actual circumstances, a separate system that has an objective independent with that of the legally secured portions system as the contributory system(Article 1008 clause 2 of the Civil Law) or furthermore, the general provisions of the principle of trust and good faith (Article 2 of the Civil Law) should be applied.