일본 개정 유류분제도를 통해 본 우리의 개정방향 - 유류분침해액청구권을 중심으로 -

Abstract

Contrary to the increasing number of lawsuits for the revendication of inheritance reserve, it has been largely peceived that the Inheritance Reserve System is difficult and complicated. Especially regarding the compensation of the inheritance reserve, there have been not a few requests for the revision of the legal nature of compensation claim and its method for inheritance reserve. In Japan, a drastic revision on the Inheritance Act was made on July 6, 2018. In this revision, a dramatic change was made by unifying the civil law, which had been interpreted that exercising the right of compensation claim for inheritance reserve naturally produces the effect of the property right, into a monetary claim equivalent to the pertinent amount of inheritance reserve. As seen in Japan's revision discussion, it cannot be concluded which is generally advantageous or disadvantageous to one of the parties related to the inheritance reserve between adopting the principle of returning the original property and the principle of value compensation. Therefore, it is rather a issue of choosing how to understand and how to set up what this system pursues to realize. In this sense, it is reasonable to take the principle of value compensation from a legislative point of view for the following reasons; First, the purpose of the Inheritance Reserve System is to return a pertinent profit to the holder of the inheritance reserve right which would have been recognized if the inheritance reserve right had not been infringed, and the object of return does not necessarily have to be limited to the original property. Second, the return of property by original property is almost always made in the form of ordering to return the pertinent share. However, such order of returning the share creates consequently a joint ownership of the object of donation or inheritance, and this will need another complicated process of dividing it according to the shared property division procedure. This point is also the biggest reason why Japan made the revision toward the right of compensation claim for inheritance reserve. Third, since the inheritee's intention was that the original property itself would be retained by the designated inheritor, returning the value amount is more in line with the intention of the inheritee than returning the original property. Regarding any possible problems out of this principle of returning the value amount, it would be necessary to make more supplementation in a way such as setting up a collateral or demanding a deferment of payment, as applied now in Japan.