최준규. (2017). 유류분과 기여분의 관계. 저스티스 통권 제162호, pp. 106-153.
Choi Joon Kyu. (2017). The Relationship between the Forced Heir’s Reserve and the Heir’s Contributory Portio, The Justice Vol. 162, pp.106-153.
The Relationship between the Forced Heir’s Reserve and the Heir’s Contributory Portion
Choi Joon Kyu*
This article examines several problems about the relationship between the forced heir’s reserve and the heir’s contributory portion. The main conclusions are as follows. First, when the contributory portion is already determined through the heirs’ agreement or the decision of Family Court, that portion should be deducted from “the base estate of forced reserve” in calculating the amount of the forced reserve. The contributory portion is a just compensation in return for the heir’s contribution to the inheritance estate. Also the heir’s contributory portion itself is not subject to the claim of the forced reserve. Therefore, it is desirable to deduct the contributory portion from the base estate of forced reserve. By doing so, the obligator who should return the forced reserve does not bear the unjust and excessive burden originating from the contributory portion. Second, when the contributory heir also has the claim for the forced reserve, his contributory portion should be added in calculating his forced reserve. It is unjust that the obligator is relieved of his duty amounting to the heir’s contributory portion, because the heir’s contributory portion is a fair return for the heir’s expenses. By doing so, the obligator who should return the forced reserve can not enjoy the unexpected gain. Third, when a testamentary gift or inter-vivos gift is a reward for the heir’s contribution to the inheritance estate, but the contributory portion can not be allowed by Family Court for the some reasons, then Civil Court should be allowed to calculate the heir’s actual contribution and take it into account in calculating the amount of the forced reserve. By doing so, the contributory heir can be assured of his fair portion. Fourth, if we take these three tactics, the trilemma about the forced reserve, testamentary gift, contributory portion will cease to exist.
Key-words : Forced heir’s reserve, Heir’s contributory portion, The Relationship between the forced heir’s reserve and the heir’s contributory portion, Contributory portion as just compensation in return for heir’s contribution to inheritance estate
최준규. (2017). 유류분과 기여분의 관계. 저스티스 통권 제162호, pp. 106-153.
Choi Joon Kyu. (2017). The Relationship between the Forced Heir’s Reserve and the Heir’s Contributory Portio, The Justice Vol. 162, pp.106-153.
The Relationship between the Forced Heir’s Reserve and the Heir’s Contributory Portion
Choi Joon Kyu*
This article examines several problems about the relationship between the forced heir’s reserve and the heir’s contributory portion. The main conclusions are as follows. First, when the contributory portion is already determined through the heirs’ agreement or the decision of Family Court, that portion should be deducted from “the base estate of forced reserve” in calculating the amount of the forced reserve. The contributory portion is a just compensation in return for the heir’s contribution to the inheritance estate. Also the heir’s contributory portion itself is not subject to the claim of the forced reserve. Therefore, it is desirable to deduct the contributory portion from the base estate of forced reserve. By doing so, the obligator who should return the forced reserve does not bear the unjust and excessive burden originating from the contributory portion. Second, when the contributory heir also has the claim for the forced reserve, his contributory portion should be added in calculating his forced reserve. It is unjust that the obligator is relieved of his duty amounting to the heir’s contributory portion, because the heir’s contributory portion is a fair return for the heir’s expenses. By doing so, the obligator who should return the forced reserve can not enjoy the unexpected gain. Third, when a testamentary gift or inter-vivos gift is a reward for the heir’s contribution to the inheritance estate, but the contributory portion can not be allowed by Family Court for the some reasons, then Civil Court should be allowed to calculate the heir’s actual contribution and take it into account in calculating the amount of the forced reserve. By doing so, the contributory heir can be assured of his fair portion. Fourth, if we take these three tactics, the trilemma about the forced reserve, testamentary gift, contributory portion will cease to exist.
Key-words : Forced heir’s reserve, Heir’s contributory portion, The Relationship between the forced heir’s reserve and the heir’s contributory portion, Contributory portion as just compensation in return for heir’s contribution to inheritance estate