기여분, 보상적 증여, 유류분 ― 헌법적, 비교법적 및 입법론적 고찰 ―

Abstract

The Korean Constitutional Court, ruled on April 25, 2024, in case no. 2020Hunga4·14, etc., that some provisions of the Korean Civil Code on the reserved share be against the Constitution to be void and other provisions be uncompatible with the Constitution. Among these, the most important is the uncompatiblity decision on Article 1118 of the Code, which stipulates that it is uncompatible with the Constitution that the reserved share does not reflect the contributory share of the heir(s) for the deceased. Though the reasoning of the Court is somewhat confusing, it is hard to deny that the Court asked other state agencies that the contributory share should be deducted from the value of the asset that forms the basis of the calculation of the reserved share. Of course, the constitutional argument that the Court based its decision on is not persuasive, which is the reason why this part surprised both the academic and practical circles. At any rate, since the decision of uncompatibility has binding force, a revision of the Code is inevitable. Notably, it is inappropriate to revise it by adding Article 1008-2 to the list in Article 1118 of the Code. This is not only because its meaning would be ambiguous, but also because it leaves many issues that need to be resolved up to interpretation. If we examine the legislation of Germany, Switzerland, Austria, and Japan, which have a contributory share as well as reserved share, we can see that, except for Japan, which does not consider contributory share in the reserved share at all, all other countries do not leave the determination of the value of contributory share to negotiation among coheirs or independent court decision, and although they agree on deduction of the contributory share from the value of the asset that forms the basis of the calculation of the reserved share, each country differs in whether to add it to the reserved share of the contributing heir, and in relation to this, there is discussion on whether to recognize (virtual) contributory share in cases where there is no remaining net estate due to donation inter vivos or bequest, and whether to deduct the so-called remuneratory donation from the value of the asset differs from country to country. All these can also be considered as solutions or alternatives for the revision.