遺留分返還의 方法으로서 原物返還의 原則과 價額返還의 例外

A person entitled to legally secured portions may exert 'Gestaltungsrecht'(the right, the holder of which is permitted to unilaterally cause changes in one's and/or other party's legal relationship), i.e., the claim of return for legally secured portions, against the legatee or the donee, and thus may acquire real claim and the claim of return for unjust enrichment. Therefore in case a person entitled to legally secured portions exert the claim of return for property(Civil Law Article 213), legally secured portions are returned in the form of 'Rückerstellung'(return of the object itself). Also in case it exerts the claim of return for unjust enrichment(Civil Law Article 741), legally secured portions are returned in the form of 'Rückerstellung' in principle. Accordingly, in case it exerts the claim of return for legally secured portions, the obligator should return the object in principle. The principle of 'Rückerstellung' may be more reasonable than the principle of 'Wertherausgabe'(return of the price) on the authority of the followings. First, it is unreasonable to derive the principle of ‘Wertherausgabe’ from Civil Law Article 1115. Second, as shown in the French civil law amended in 2006, legally secured portions have been focused on the conservation of value. But in the case of Korea of which people are too possessive of real estates, there may be many cases where the persons entitled to legally secured portions hope that the object will be returned. Third, in case legally secured portions are returned on the basis of the principle of ‘Wertherausgabe’, the person entitled to legally secured portions should burden the risk of the donee’s insolvency, which runs counter to the basic objective of the system of legally secured portions. Fourth, according to the principle of 'Rückerstellung', the injunction may be applied against disposal immediately after inheritance in the interests of conservation. And according to the principle of ‘Wertherausgabe’, provisional attachment is to be the disposal of conservation. But in the case of provisional attachment, the profits from sale should be shared with other creditors in the process of realization by the compulsory sale. On the other hand, in the event that the injunction is applied against disposal, only the person entitled to legally secured portions, namely the person entitled to injunction, may be satisfied with it. Consequently, it is more advantageous for the person entitled to legally secured portions.