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 -

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.