특별수익 반환가액의 산정 - 상속개시 이전에 처분한 수증재산을 중심으로 -

Abstract

This thesis discusses about the appropriate time for computing the price of property received as a gift that has been transferred to the third party before the inheritance commenced. The hotchpot, which is included in inherited property or basic property for assessing legally secured portion of an heir, is calculated in the form of restoring the amount. Therefore, the issue of deciding the time for computing the property received as a gift is very important for ‘the equity of heirs.’ The imputed restoration of property received as a gift back into inherited property is one procedure for computing the portions of inheritance, and is the premise for partition of inherited property. Thus, the time of computing should be the same as the time of computing inherited property and contribution part, and since the time of computing inherited property for contribution part(Civil Code article 1008-2) and legally secured portion(Civil Code article 1113) is prescribed as ‘the commencing time of inheritance,’ it is appropriate to interpret the time of computing hotchpot as ‘the commencing time of inheritance.’ However, it is unjust for ‘the equity of heirs’ to consider the property received as a gift to be computed at that time if it has already been transferred to the third party. Deciding the time of computing the price is the question of how to distribute the fluctuation of the price of subject property among coheirs. Therefore, the time of transfer is appropriate as a compromise to settle the unfairness that happens when the time of inheritance or the time of gift is considered. Also, it seems proper to convert the price of ‘transfer’ to the time of inheritance and then restore it.