相續分의 先給으로서 특별수익에 관한 再論

Article 1008 of Korean Civil Law, which included a bad practice, prescribed that the inheritee who was actually a head of a family and inheritor who was given that status were guaranteed more by the law than they had to be. Therefore, the special benefit system was amended to achieve a just and fair relation among inheritors, which removed the cause of decrease of the other inheritor's share by regarding a given interest to an inheritor as an initial payment. However, the Civil Law in force has two serious problems as follows; firstly,the intent of the inheritee with a view to maintaining the equity of shares among co-inheritors is not considered at all in current special benefit system, and secondly, even the testamentary gift goes to mediation with no consideration regardless of the explicit intent of the inheritee. I strongly do wonder whether the existing law is right. So, this paper discusses on the duty to reflect the intent of the inheriteepreferentially through the prohibition of mediation on the special benefit, and on whether to include the inheritor by representation in the scope of special beneficiary which has to keep the duty of fairness at the time of the commencement of inheritance, and so on.