遺留分 侵害額의 算定方法에 관한 小考 - 相續에 의해 取得한 積極財産額의 算定方法을 중심으로 - (Calculation of the Amount of Legally Secured Portions Infringed by an Ancestor's Bequest or Donation)

서지정보

· 발행기관 : 고려대학교 법학연구원
· 수록지 정보 : 고려법학 / 51호 / 439 ~ 484페이지
· 저자명 : 정구태

초록

Property possessed by means of succession by the right holder of
legally secured portions should be calculated based not on statutory
shares in succession but on the right holder’s specific shares in
succession. Considering that the purpose of recognizing legally secured
portions is to secure the legal minimum of assumed shares, the critical
question with regard to the claim of return of legally secured portions
can be said to be the actual property gained by the right holder.
Therefore, in calculating the property earned by the right holder
through succession, it would be appropriate to calculate the property
based on specific shares in succession that can actually be earned by
the right holder by division of inherited property.
Moreover based on the fact that article 1118 of the civil code
applies article 1008 mutatis mutandis, since there is hardly any
argument against the view that the special gift received by a coheir
should be included in the basic property for legally secured portions
without any time limits as provided for in article 1114, it would be in
the spirit of article 1118 to base the calculation of the right holder’s
property gained through succession on his specific shares in
succession, considering the special gift according to article 1008. Where there is a coheir who received a special gift, calculating the
amount of legally secured portions infringed by an ancestor’s bequest
or donation has been based, as is the view of this paper, on specific
shares in succession in lower court cases. However there doesn’t seem
to be any such Supreme court decisions. This author hopes and
expects the Supreme court to base its decision in the future on the
right holder’s specific shares in succession, in line with the purpose of
legally secured portions.

영어초록

Property possessed by means of succession by the right holder of
legally secured portions should be calculated based not on statutory
shares in succession but on the right holder’s specific shares in
succession. Considering that the purpose of recognizing legally secured
portions is to secure the legal minimum of assumed shares, the critical
question with regard to the claim of return of legally secured portions
can be said to be the actual property gained by the right holder.
Therefore, in calculating the property earned by the right holder
through succession, it would be appropriate to calculate the property
based on specific shares in succession that can actually be earned by
the right holder by division of inherited property.
Moreover based on the fact that article 1118 of the civil code
applies article 1008 mutatis mutandis, since there is hardly any
argument against the view that the special gift received by a coheir
should be included in the basic property for legally secured portions
without any time limits as provided for in article 1114, it would be in
the spirit of article 1118 to base the calculation of the right holder’s
property gained through succession on his specific shares in
succession, considering the special gift according to article 1008. Where there is a coheir who received a special gift, calculating the
amount of legally secured portions infringed by an ancestor’s bequest
or donation has been based, as is the view of this paper, on specific
shares in succession in lower court cases. However there doesn’t seem
to be any such Supreme court decisions. This author hopes and
expects the Supreme court to base its decision in the future on the
right holder’s specific shares in succession, in line with the purpose of
legally secured portions.

참고자료

· 없음