독일의 유류분 제도

• 영문명: Forced share in German law
• 발행기관: 한국가족법학회
• 저자명: 최준규(Joon-kyu Choi)
• 간행물 정보: 『가족법연구』家族法硏究 第22卷 1號, 257~302쪽, 전체 46쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.03.30

영문 초록

  The object of this thesis is to survey the forced share system in German law from the view point of comparative law.
  In Comparison with forced share system in Korean law, forced share in German law has such distinct features as follows.
  First, forced share in German law is only allowed as a pecuniary claim.
  Second, ordinary forced share and extra forced share that is originated from lifetime donation are considered separately. So under the same condition, the total forced share (ordinary share plus extra share) and the statue of limitations can be different from those in Korean law. And the extra forced share claim against donee can be only permitted supplementarily when the claim against heir at law cannot be fulfilled.
  Third, inheritee’s lifetime contribution can be considered through three different ways (donation, contribution to children, contribution with appointment).
  But German system also has a similar structure to Korean system. First, only legal heir can have forced share. Second forced share is calculated regardless of legal heir’s economic necessity, emotinal relationship between inheritee and legal heir, legal heir’s contribution to inheritee’s property. Consequently the outcome can be unreasonable. I think that, in these cases court must apply bona fide principle actively and try to solve the problem positively (judicial activism).
  Forced share system has a character as a restriction on the testamentary freedom. Succession system can violate liberalism because succsession destroys equality at opportunity. However succession can contribute to liberalism on the other hand, because it maxmizes the inheritee’s incentive to increase his wealth. And when the inheritee doesn’t want to inherit his wealth to his children(so the inheritee’s incentive doesn’t matter), the ground for succession system disappears at least from point of liberalism. I think that, although we must accept the forced share, testamentary freedom has a superior status to forced share. And when we decide the scope and way of the forced share in concrete cases, this thought must be considered.

목차

Ⅰ. 서론
Ⅱ. 독일 유류분 제도의 개관
Ⅲ. 독일 유류분 제도의 구체적 내용
Ⅳ. 결어 - 우리법에 대한 시사점
《참고문헌》

키워드

독일 유류분 금전청구권적 구성 상속분적 구성 통상 유류분 유류분보충청구권 유언의 자유 자유주의 forced share in German law pecuniary claim property right ordinary forced share extra forced share testamentary freedom liberalism