遺留分權利者의 承繼人의 範圍 - 包括的 遺贈의 法的 性質에 대한 從來 通說의 批判的 檢討 - (The Definition of the Successor to a Person Entitled to Legally Secured Portions － A Critical Review on the Existing Common Views on the Legal Notions of Universal Testation －)

서지정보

· 발행기관 : 안암법학회
· 수록지 정보 : 안암법학 / 28호 / 115 ~ 154페이지
· 저자명 : 정구태

초록

As the claim of return for legally secured portions is regarded as ‘Gestaltungsrecht’(German for the right, the holder of which is permitted to unilaterally cause changes in one's and/or other party's legal relationship), the successor to a person entitled to legally secured portions should be regarded as only the one who succeeded to inclusive status including the right of legally secured portions itself. Thus, an heir to a person entitled to legally secured portions can naturally exercise the claim of return for legally secured portions in the capacity of a general successor to a person entitled to legally secured portions.
However, a testamentary donee by a universal title is not the one who generally succeeded to successional status itself including the right of legally secured portions, but is just the one who singularly succeeded to the total presented property or its given percentage excluding the debt of the person entitled to legally secured portions. Consequently, a testamentary donee by a universal title cannot exercise the claim of return for legally secured portions in the capacity of a successor to a person entitled to legally secured portions. Resultantly, the common view, “a testamentary donee by a universal title can exercise the claim of return for legally secured portions in the capacity of a general successor to a person entitled to legally secured portions” should be unreasonable.
On the other hand, though the transfer of the portion is not general succession, it is possible to transfer the right of legally secured portions by the transfer of the portion. Accordingly the grantee, related to the portion of the person entitled to legally secured portions, can exercise the claim of return for legally secured portions. With regard to the common view, “the grantee, related to the portion of the person entitled to legally secured portions, can exercise the claim of return for legally secured portions”, the rationale is unreasonable but the result is reasonable.
And as ‘Gestaltungsrecht’ is inseparable from the basic right, it is impossible to transfer ‘Gestaltungsrecht’ separately from the basic right. To be accurate, the view, “grantees of the individual claim for return for legally secured portions can exercise the claim of return for legally secured portions” is unreasonable in that the claim of return for legally secured portions is regarded as ‘Gestaltungsrecht’.

영어초록

As the claim of return for legally secured portions is regarded as ‘Gestaltungsrecht’(German for the right, the holder of which is permitted to unilaterally cause changes in one's and/or other party's legal relationship), the successor to a person entitled to legally secured portions should be regarded as only the one who succeeded to inclusive status including the right of legally secured portions itself. Thus, an heir to a person entitled to legally secured portions can naturally exercise the claim of return for legally secured portions in the capacity of a general successor to a person entitled to legally secured portions.
However, a testamentary donee by a universal title is not the one who generally succeeded to successional status itself including the right of legally secured portions, but is just the one who singularly succeeded to the total presented property or its given percentage excluding the debt of the person entitled to legally secured portions. Consequently, a testamentary donee by a universal title cannot exercise the claim of return for legally secured portions in the capacity of a successor to a person entitled to legally secured portions. Resultantly, the common view, “a testamentary donee by a universal title can exercise the claim of return for legally secured portions in the capacity of a general successor to a person entitled to legally secured portions” should be unreasonable.
On the other hand, though the transfer of the portion is not general succession, it is possible to transfer the right of legally secured portions by the transfer of the portion. Accordingly the grantee, related to the portion of the person entitled to legally secured portions, can exercise the claim of return for legally secured portions. With regard to the common view, “the grantee, related to the portion of the person entitled to legally secured portions, can exercise the claim of return for legally secured portions”, the rationale is unreasonable but the result is reasonable.
And as ‘Gestaltungsrecht’ is inseparable from the basic right, it is impossible to transfer ‘Gestaltungsrecht’ separately from the basic right. To be accurate, the view, “grantees of the individual claim for return for legally secured portions can exercise the claim of return for legally secured portions” is unreasonable in that the claim of return for legally secured portions is regarded as ‘Gestaltungsrecht’.

참고자료

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