유류분반환청구권의 성질

A Study on the Legal Nature of the Claim for a Return Legal Reserve of Inheritance

As an institution stems from the Roman and Germanic Law, the system of legal reserve of inheritance had been adopted in various countries such as Germany, France and so on and Korea adopted it in 1977 by the partial amendment of Korean Civil Code. However, the legal nature of the claim for a return legal reserve of inheritance has been hotly debated because Korean Civil Code has just 7 articles regarding it. In addition, the Korean Supreme Court does not have enough cases to end this argument and, thus, the problem currently exists. Therefore, this article explores the legal nature of the claim for a return legal reserve of inheritance under the Korean Civil Code focused on precedent studies and Supreme Court cases as a conclution. First, because the Korean Civil Code does not acknowledge so called the right of diminution under the Japanese Civil Code and Paragraph 1, Article 1115 indeterminately stipulates that “When there are shortages in the legal reserve of inheritance due to gifts or testamentary gifts made by the inheritee --- persons with the right to legal reserve of inheritance may recover the shortage”, legal scholars sharply conflicted whether the legal nature of the claim for a return legal reserve of inheritance is the right of claim or Gestaltungsrecht(German for the right, the holder of which is permitted to unilaterally cause change in one’s and / or other party’s legal relationship). However, the system of legal reserve of inheritance under the Civil Code secures inheritor within fixed scope to legally acquire the specific portion of inheritee’s property and, in this context, the Code allows persons with the right to legal reserve of inheritance to recover the shortage when there are shortages in the legal reserve of inheritance due to gifts or testamentary gifts made by the inheritee. Thus, considering this legislative intent, the claim for a return legal reserve of inheritance can be construed as Gestaltungsrecht. Second, the “10 years” of exercising period of the later part of the Article 1117 in the Korean Civil Code for the claim for a return legal reserve of inheritance should be understood as exclusion period and this is the basis of the construction that the legal nature of the right is Gestaltungsrect. Third, from the perspective of legislative improvement, it is needed to admit Article 1040 under the Japanese Civil Code. That is, the Korean Civil Code should establish a new Article 1116-2 that states “When a donee who should return transfer the subject of donation to a third party, he/she should reimburse the value to the person(s) with the right to legal reserve of inheritance. However, when the transferee knew that it could harm the person with the right to legal reserve of inheritance at the time of transfer, the person may also request for return.” in Parapraph 1 and “Preceding paragraph shall apply mutatis mutandis to the case that donee created any right in favor of himself above the subject of donation.” in Paragraph 2. As a result, this article could end the debate of the legal nature of the claim for a return legal reserve of inheritance.