대습상속과 특별수익, 그리고 유류분 − 대법원 2014. 5. 29. 선고 2012다31802 판결에 대한 비판적 검토 −

As regards cases where an ancestor gave his assets to his grandson before the death of his son, the court ruled that the donated property could not be defined as special benefit and be included in the reserve. This is highly significant in that it is the first ruling on relation between inheritance by representation, shares of inheritance for special beneficiary, and legal reserve of inheritance. Nevertheless, I cannot approve of the ruling that disallows claims for the adjustment of special benefit and for the return of legal reserve of inheritance. If it is not permitted to demand the adjustment of special benefit and legal reserve of inheritance, as in the foregoing ruling, it may bring about the connivance of inherited property of which more share is vested in an inheritor by representation qualified as a co-successor as compared to other co-successors, which is an obstruction to the equity among co-successors. It is recommended that regulations regarding inheritance by representation, shares of inheritance for special beneficiary, and legal reserve of inheritance should be reenacted based on the equity among co-successors.