배우자 특별수익에 관한 하급심 실무동향 및 분석

• 영문명: Judicial Precedent Trends and Analysis on Spouse’s Special Benefit at the Lower Court: Focus on guarantee of spouse’s right of inheritance
• 발행기관: 한국가족법학회
• 저자명: 박원철(PARK WON CHEOL)
• 간행물 정보: 『가족법연구』家族法硏究 第35卷 1號, 1~60쪽, 전체 60쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2021.03.30

영문 초록

Under the existing civil law, spouse’s right of inheritance is not likely to be properly protected for the following reasons: surviving spouse’s shares of statutory inheritance has a considerable difference from the division of property caused by divorce, exception rules for spouse’s special benefit have not been made, and acceptance requirements for spouse’s contributory portion to support are strict. However, inheritee’s will needs to be more respected in that inheritee’s bestowal or bequest to spouse is likely to have reflected spouse’s community property formation or support. To the same effect, the Supreme Court decided that if spouse’s property received contains compensation or evaluation for spouse’s contribution or effort, liquidation of substantial community property, and performance of obligation of support, this is not a special benefit. Nevertheless, the judgement by the lower court on spouse’s contributory portion and special benefit has ambiguous criteria, is inconsistent and less predictable, and has limitations in examining evidence or difficulties in fact finding and difference in judge’s empirical rule and value judgement, which causes judges to draw different conclusions. For such reasons, the legal system that was intended to promote substantial equity between co-inheritors may cause inequality between co-inheritors or infringe spouse’s right of inheritance severely. Therefore, the theory of legislation that to guarantee spouse’s right of inheritance, the existing civil law should be revised in the direction of introducing such methods: considering inheritee’s explicit intent of return exemption on the preferential basis or increasing spouse’s share of statutory inheritance instead of dividing the inheritance share depending on contributory portion and special benefit is getting persuasion.

목차

Ⅰ. 서 론

Ⅱ. 대상판결

Ⅲ. 하급심 사례 분석

Ⅳ. 특별수익에 대한 판단이 엇갈린 1, 2심 사례 및 원인 분석

Ⅴ. 결어―대상판결에 대한 고찰

키워드

가정법원 상속재산분할 유류분 생존배우자 피상속인 공동상속인 법정상속분 배우자 상속 특별수익 기여분 부부공동재산의 청산 부양의무 특별한 부양 생전증여 상속분의 선급 family court partition of inheritance property legal reserve of inheritance surviving spouse inheritee co-inheritor shares of statutory inheritance inheritance of spouse special benefit contributory portion liquidation of community property obligation of support special support pre-heritance advance payment of share of inheritance