유류분반환청구권 관련 소고(小考)

Riding the tide of global economic downturns and its effects, the voice of concerns are looming large, saying that excessive inheritance tax and legal reserve of inheritance are impeding the operational vigor for both small and large enterprises. Such concerns relate to the issue of how to reconcile the basic principal of inheritance tax and legal reserve, which aim to prevent generational descent of wealth with practical necessity from macroeconomic level. From macroeconomic perspective, in case of inheritors'claims for legal reserve when he/she can maintain certain quality of living in the absence of it, there are social cost of redistribution as well as possibility of reduction of value generation such as growths of corporate firms. For instance, in case a predecessor with an established small-medium enterprise wishes to inherit a firm to one of his children who has educational background in management, if a group of remaining inheritors except the intended issue executes their right of claim for legal rights, they can collectively execute their right of claim for legal reserves of inheritance, which will work towards their favor. The inheritors may not be interested managing the firm and may sell their stocks to foreign investors resulting in de-facto transfer of the enterprise to foreign stockholders. Therefore, interpretation and execution of current institution of legal reserve for inheritance need to consider such economic interests at stake, and it would be a worthwhile endeavor to reconsider freedom of predecessor's testament and safety of transactions. As civil law of Korea does not include specific clauses regarding legal reserve for inheritance, lacking practical solutions to legal problems incurring during execution of return claim of legal reserve, such legal-economic consideration will mark a constructive starting point in developing theories for analysis on execution of rights for claiming inheritance legal reserve.