유류분의 범위와 증여재산의 산입 요건 (A Study on the Scope of Legally Secured Portions and the Requirement for Donated Property)

서지정보

· 발행기관 : 원광대학교 법학연구소
· 수록지 정보 : 원광법학 / 29권 / 3호 / 149 ~ 178페이지
· 저자명 : 김기영

초록

Civil Law makes it a rule to maintain an absolute ownership on the basis of individualism and liberalism, and also provides security in disposing his own property by his own, through the disposition freedom before or after death. But if the freedom of property disposition is permitted without limit, the expectation of the remnant of family, especially inheritors would be vanished and his life-basis would be collapsed. So the system which can provide a inheritor with a certain in- heritance by restricting the freedom of inheritee's property disposition is required, is called legally secured portions.
The system of legally secured portions is the compromised point between the freedom of private property disposition and the protection of inheritor. The purpose of legally secured portions system is to give an inheritor a certain amount of inheritance, a certain portions of legal inheritance. Therefore whether an inheritor was given by an inheritee while he was living, or given a part of inheritance which is less than legally secured portions, the scope of legally secured portions should be estimated in consideration, and the basic property establishment is very important.
In the meantime, the basic property for legally secured portions should be considered the property at the time of starting an inheritance, donated property, inheritance debt. The donated property is included the one which an inheritee donated within 1 year from, 1 year before the time of starting inheritance, and which is not performed yet.
In recent case, donation which is performed 1 year before the time of starting inheritance should be added up to the basic property of legally secured portions estimation, in case of both a donator and a receiver intended to give a loss to a rightful person of legally secured portions. An evil intention means that both a donator and a receiver recognized giving a loss to a rightful person of legally secured portions at the time of donation.
Especially, in relation with the evil intention of both the case defined the evil intention as that they recognized the remaining property is less than the legally secured portions at the time of donation, and also they estimated the inheritee's property would not be increased until the time of starting inheritance. The case shows emphasizing the stability of transaction and law rather than the protection of legally secured portions rightful person by judging the scope of ill intention narrow.

영어초록

Civil Law makes it a rule to maintain an absolute ownership on the basis of individualism and liberalism, and also provides security in disposing his own property by his own, through the disposition freedom before or after death. But if the freedom of property disposition is permitted without limit, the expectation of the remnant of family, especially inheritors would be vanished and his life-basis would be collapsed. So the system which can provide a inheritor with a certain in- heritance by restricting the freedom of inheritee's property disposition is required, is called legally secured portions.
The system of legally secured portions is the compromised point between the freedom of private property disposition and the protection of inheritor. The purpose of legally secured portions system is to give an inheritor a certain amount of inheritance, a certain portions of legal inheritance. Therefore whether an inheritor was given by an inheritee while he was living, or given a part of inheritance which is less than legally secured portions, the scope of legally secured portions should be estimated in consideration, and the basic property establishment is very important.
In the meantime, the basic property for legally secured portions should be considered the property at the time of starting an inheritance, donated property, inheritance debt. The donated property is included the one which an inheritee donated within 1 year from, 1 year before the time of starting inheritance, and which is not performed yet.
In recent case, donation which is performed 1 year before the time of starting inheritance should be added up to the basic property of legally secured portions estimation, in case of both a donator and a receiver intended to give a loss to a rightful person of legally secured portions. An evil intention means that both a donator and a receiver recognized giving a loss to a rightful person of legally secured portions at the time of donation.
Especially, in relation with the evil intention of both the case defined the evil intention as that they recognized the remaining property is less than the legally secured portions at the time of donation, and also they estimated the inheritee's property would not be increased until the time of starting inheritance. The case shows emphasizing the stability of transaction and law rather than the protection of legally secured portions rightful person by judging the scope of ill intention narrow.

참고자료

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