遺留分制度의 憲法的 根據와 法政策的 論議 - 獨逸 聯邦憲法裁判所 決定을 契機로 하여

Forced Share from Viewpoint of Constitution and Comparative Law

&nbsp;&nbsp;In the decision of 2005. 4. 19, the German constitutional court(BVerfG) made his standpoint of forced share clear. Before this decision, the court leaved the problem uncertain, whether it is constitutionally required to create forced share provisions. In this case, the BVerfG decided that forced share is under the constitutional protection and absolute abolition of forced share would violate the German constitution.<BR>&nbsp;&nbsp;One obvious argument for forced share is that a forced share for children could protect the decedent&quot;s family more fully from a financial point of view. But because of social change which has happened after the enactment of German civil code, it is open to doubt whether the forced share in force is as before appropriate system. In my opinion the support function and consanguinity are still the strongest grounds for forced share. But more flexible way of balancing between the testamentary freedom and the forced heirship principle should be explored. Especially it should be taken into account that when the forced share is approved, even a successor can&quot;t alter or deprive of it.<BR>&nbsp;&nbsp;In common-law countries the family maintenance system provided the testator&quot;s children and other dependents the opportunity to claim a part of the estate and this system is characterized by judicial discretion. In Germany this way of balancing is legislatively proposed, but the BVerfG refused this proposal clearly. But in my opinion legislature enjoy the wide discretion to enact concrete provisions, therefore even if the German forced share provisions adopted family maintenance system, this one would not violate necessarily the german constitution. And it should be considered that today the need to support testator&quot;s children by forced share is greatly decreased.<BR>&nbsp;&nbsp;And in this decision it was considered whether general clause should be enacted in forced share deprivation provisions. The BVerfG decided that a general clause, for example disruption clause or alienation clause is indefinite, therefore unconstitutional. But in modern society familial binding of estate is generally weakened, consequently forced share deprivation doesn&quot;t have to be limited to extreme cases.