피상속인의 의사해석에 따른 민법 제1008조의 해석론 ―조정의 면제, 유증, 초과특별수익의 반환에 관한 논의를 중심으로― (Interpretation of Article 1008 of the Korean Civil Code according to the Interpretation of the Inheritee’s Intention)

서지정보

· 발행기관 : 한국가족법학회
· 수록지 정보 : 가족법연구 / 38권 / 2호 / 247 ~ 302페이지
· 저자명 : 김창규

초록

Interpreting and applying Article 1008 of the Korean Civil Code (hereinafter referred to as “Article 1008”) as written would result in the property endowment made to the inheritor of the inheritee converging with the statutory inheritance share. The exemption from special benefits adjustment occurs when the intentions of the inheritee differ from the contents stipulated in Article 1008, leading to the exclusion of the application of Article 1008 in accordance with the inheritee’s intentions.
I perceived that in cases where a testamentary gift by universal title for the inheritor results in an amount insufficient to meet the statutory inheritance share, thereby causing a modification of the inheritance share, if an inheritor who received a testamentary gift by universal title had also received property transfers such as gifts(excluding a testamentary gift by specific title) during inheritee’s lifetime, it could be inferred that they had already received the testamentary gift by universal title in advance. Thus, Article 1008 could be analogously applied in such cases. Furthermore, I suggest that when a testamentary gift by universal title for the inheritor falls short of the statutory inheritance share, leading to a modification of the inheritance share, in cases where both a testamentary gift by universal title and a testamentary gift by specific title have occurred, or in cases where a property is contributed after the testamentary gift by universal title during the inheritee’s lifetime, all scenarios are governed by the discussion of contradiction of wills. This results in a similar outcome as if Article 1008 were applied.
Unless there are provisions in domestic law, such as BGB § 2056, the issue of returning excess special benefits must be viewed from the perspective of exemption from adjustment of special benefits. It is necessary to exercise great caution in recognizing the implicit intention to exempt the return of excessive special benefits in relation to the property contribution exceeding the original inheritance share to the inheritor of the inheritee.

영어초록

Interpreting and applying Article 1008 of the Korean Civil Code (hereinafter referred to as “Article 1008”) as written would result in the property endowment made to the inheritor of the inheritee converging with the statutory inheritance share. The exemption from special benefits adjustment occurs when the intentions of the inheritee differ from the contents stipulated in Article 1008, leading to the exclusion of the application of Article 1008 in accordance with the inheritee’s intentions.
I perceived that in cases where a testamentary gift by universal title for the inheritor results in an amount insufficient to meet the statutory inheritance share, thereby causing a modification of the inheritance share, if an inheritor who received a testamentary gift by universal title had also received property transfers such as gifts(excluding a testamentary gift by specific title) during inheritee’s lifetime, it could be inferred that they had already received the testamentary gift by universal title in advance. Thus, Article 1008 could be analogously applied in such cases. Furthermore, I suggest that when a testamentary gift by universal title for the inheritor falls short of the statutory inheritance share, leading to a modification of the inheritance share, in cases where both a testamentary gift by universal title and a testamentary gift by specific title have occurred, or in cases where a property is contributed after the testamentary gift by universal title during the inheritee’s lifetime, all scenarios are governed by the discussion of contradiction of wills. This results in a similar outcome as if Article 1008 were applied.
Unless there are provisions in domestic law, such as BGB § 2056, the issue of returning excess special benefits must be viewed from the perspective of exemption from adjustment of special benefits. It is necessary to exercise great caution in recognizing the implicit intention to exempt the return of excessive special benefits in relation to the property contribution exceeding the original inheritance share to the inheritor of the inheritee.

참고자료

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