遺留分制度에 관한 硏究 = A Study on the System of a Legal Portion of An Heir

다국어 초록 (Multilingual Abstract)

The System of a legal portion of an heir is the system which is established in order that for a certain heir of heirs a legal portion of an inheritance should be reserved by an inhertiee.
Our country did not adopted the system in the past until adopted it in 1977 through a partial amendment of the Civil Law Act. But because we have only seven insufficient provisions on the system, we have only many doubts in the construction of the Act.
So in this treatise I tried to examine the origin of the system, the adoption process of it in the modern law, the existing models of the legislation in the several main legal systems comparatively, and the problems in our system, especially the assessment of a reserve and the claim of restoration of a reserve preponderantly.
And finally on those bases I tried to mention the sturctural distinctions of our system as follow:
1) A reserve is the part of the property reverted to each rightful person for a reserve, which is certain part of one's own legal inheritance.
2) As a rightful person for a reserve should be an ingeritor and his reserve should be protected by his legal capacity, the claim for a reserve is related to the claim for a legal inheritance inseparably.
3) The releasement of only the claim for a reserve doesn't have any influence upon his status as an inheritor or upon the amounts of other inheritors reserves.
4) As a rightful person for a reserve should be an inheritor and has the claim for a reserve by his legal capacity, the claim should be characterized by a real right.
5) As the claim of restoration for a reserve should be a claim of a real right, the principle of the restoration in kind should be adopted as a rule.
After all our system should be founded on the form of the German legal system, not of the Roman legal system which is different from the above one: consequently in the construction of the Act, a donee, a devisee or a legatee, and the profit of a third party should be considered comparatively on the base of German Law.

목차 (Table of Contents)

• 第一章 序 論
• 第二章 遺留分制度의 槪觀
• 第一節 沿革에 대한 比較法的 槪觀
• 第二節 存在理由
• 第三節 型
• 第三章 遺留分權
• 第一節 意義 및 性質
• 第二節 遺留分權利子 및 遺留分額
• 第三節 遺留分權의 抛棄
• 第四章 遺留分算定
• 第一節 總 說
• 第二節 遺留分算定의 基礎財産
• 第三節 遺留分基礎財産의 評價
• 第五章 遺留分反還請求權
• 第一節 序 言
• 第二節 意 義
• 第三節 性 質
• 第四節 返還請求權者와 相對方
• 第五節 返還請求權의 行使
• 第六節 返還의 順序
• 第七節 返還請求의 效力과 目的物
• 第八節 返還請求權의 消滅
• 第六章 結 語