일본의 유류분제도 변천과우리 민법에의 시사점에 관한 소고

Since the introduction of the legal reserve of inheritance (Yuryubun) in the Civil Act in 1977, significant shifts in demographic structures, family functions, and socio-economic conditions have led to continuous calls for legal revision. In April 2024, the Constitutional Court of Korea issued decisions of unconstitutionality and constitutional non-conformity regarding several provisions: the provision granting legal reserve rights to the decedent's siblings, the failure to stipulate explicit grounds for the forfeiture of such rights, and the absence of a provision applying Article 1008-2 (Contributory Portion) mutatis mutandis to the legal reserve system. Following a ruling of unconstitutionality by its Supreme Court, Japan underwent a major overhaul of its inheritance laws in 2018. This reform introduced the spouse’s right of residence, streamlined estate division rules, and restructured the system by converting the method of returning the legal reserve into a monetary claim (a claim for the amount of infringement of the legal reserve). While the legal reserve systems of Korea and Japan differ, referencing the contents and outcomes of Japan's reforms is expected to enhance the efficiency of discussions regarding the revision of Korea's own system. This paper examines the background and content of Japan’s legal reserve reforms and provides implications for the Korean Civil Act. Specifically, it presents opinions and examines legislative discussions centered on: The transition of the return method to a monetary claim. The restriction of legal reserve rights based on the degree of an heir's conduct versus the restriction of inheritance rights themselves. The waiver of legal reserve rights prior to the commencement of inheritance. In conclusion, from a legislative perspective, this paper proposes that the freedom of testament should be expanded while the legal reserve is reduced. It emphasizes the need to limit legal reserve rights by considering the actual bonds between relatives and suggests the introduction of a system for waiving legal reserve rights before the commencement of inheritance.