노인복지시설 입소계약과 상속재산 여부 - 대법원 2022. 1. 14. 선고 2021다271183 판결을 중심으로 -

Abstract

The Supreme Court(in the Supreme Court Decision 2021da271183 on January 14, 2022) decided that designating a recipient for the refund when a resident of a welfare facility for the elderly dies can be regarded as a “contract for the benefit of a third party,” and that the refund bond acquired by the recipient falls under the recipient's own property, not the inherited property. In this regard, this paper examined ① whether the admission contract that the recipient of refund was designated is the donation mortis causa or a contract for the benefit of a third party, ② the nature of the refund acquired by the recipient, and ③ whether heirs could claim the return of legal reserve of inheritance from the recipient, although not directly addressed in the judgment. As a result of the review, the following conclusions were reached. (1) Whether or not the donation mortis causa has been established between the resident and the recipient should be examined whether the party has an intention to sign a contract. Unless it is clearly indicated by an act or an accurate declaration of intention, it is difficult to say that there is a willingness to sign a contract. Therefore, it is reasonable to assume that the act of signing a contract stating that the recipient of the return is a specific person cannot be regarded as the donation mortis causa, and that the donation mortis causa has not been signed. (2) It is a contract for a third party because the resident signed an admission contract with the aim of having the recipient acquire a refund bond. According to the rule of a contract for the benefit of a third party, the recipient's claim belongs to the recipient as a condition for the cancellation of the claim that the recipient will not be changed by the resident and that the resident will not terminate the admission contract during his/her lifetime. In addition, the admission contract will be terminated due to the death of the resident and there will be a refund to be paid to the recipient by the welfare facility. Since the third party acquired the conditional right by expressing the intention of profit during the life, it can be a donation before life, not the donation mortis causa. Since the fact that the donation was made during life means that the property was out of the heir's, the Supreme Court's judgment that the return bond is not inherited property but the recipient's own property is reasonable. (3) The nature of the refund shall be judged by comprehensively considering whether the “contract for the benefit of a third party” rule is applied, whether the donation mortis causa is established, and various related circumstances, and cannot be uniformly determined as proprietary or inherited property. (4) In the case, the conditional bond acquired by the beneficiary as a donation before life is subject to a claim for the return of the legal portion of the heir, and the amount paid after the settlement of the welfare facility becomes the value of the donation.