유류분과 기여분의 관계에 관한 개정 방안

A Proposal for the Amendment of the Relationship Between the Reserved Portion and Contribution Shares

The Constitutional Court’s decision on April 25, 2024, in Cases 2020Hun-Ka4 et al. declared that Article 1118 of the Civil Code violates the Constitution by failing to apply mutatis mutandis Article 1008-2 concerning contribution shares, thereby severing the connection between the reserved portion and contribution shares. The Court ordered legislative amendments by December 31, 2025. This decision has sparked academic debate, with two opposing perspectives emerging. One view argues that the primary rationale of the decision lies in the injustice of imposing the obligation to return the reserved portion on a contributing heir who has received compensatory gifts from the decedent. According to this view, the law should be amended to exclude such compensatory gifts from the base estate used to calculate the reserved portion. The opposing view, however, focuses on the disconnection between the reserved portion and contribution shares as the core issue of the decision. It contends that since the Constitutional Court seeks to strongly safeguard contribution shares as compensable transactions, legislative amendments should deduct the contribution share from the base estate when calculating the reserved portion. This paper critically examines the flaws of both perspectives. Furthermore, it proposes a broad legislative revision of the Civil Code to systematically link the reserved portion and contribution shares not only in cases where the person obligated to return the reserved portion is a contributing heir but also in cases where the claimant of the reserved portion is a contributing heir or where the person obligated to return the reserved portion is a third party.