상속재산이 변형된 가분채권과 상속재산 분할 - 대법원 2016. 5. 4. 자 2014스122 결정 -

초록

In this case, the parties are joint heirs, and the Plaintiff makes an application to the family court for a division of the inherited property. Rebutting this assertion, the Defendants argues that all the inherited property has been already divided between the joint heirs as to Statutory Share because it is made up of only divisible claims. But The Court holds that the divisible claims in this case can be divided by Judgement In cases there are more than one obligor, unless any other intention is manifested, each obligor shall have the equally proportionate rights. But if there is a person from amongst joint heirs who has previously received a special gift and/or who has made a special contribution, all the inherited property be considered in the procedure to treat all the joint heirs equally. This rule is to be applied to the substitute of the inherited property, not only the Claim for the Substitute is generally admitted and even suggested in the new draft for a Civil Code Reform, but also it can be contribute to realize the principle of equality of joint heirs. But the author, criticizing this ruling, suggests the better solution. If other heirs have already divided the inherited property or made another disposition, the division of inheritance should take the form of payment for value to prevent instability of legal relationship concerning the inheritance.

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