Constitutional Court: “The reserve system that forces siblings to inherit is unconstitutional”

Oil fraction introduced in 1977… The judges unanimously decided that it was unconstitutional.

[법률저널=이상연 기자] The Constitutional Court ruled that the reserve system, which forces brothers and sisters to inherit a certain percentage of the inheritance regardless of the deceased’s will, is unconstitutional. In addition, Article 1112, Nos. 1 to 3 of the Civil Act, which stipulates the reserved portion, was determined to be inconsistent with the Constitution, recognizing its effect only until December 31, 2025, and losing effect if the National Assembly does not revise the law by then. Article 1118 of the Civil Code, which does not recognize contributions from specific people, was also ruled unconstitutional.

On the 25th, the Constitutional Court ruled Article 1112, Paragraph 4 of the Civil Act unconstitutional with the unanimous opinion of the judges.

The Constitutional Court stated, “It is difficult to find a valid reason for granting inheritance rights to the deceased’s brothers and sisters, even though their contributions to the formation of the inherited property or their expectations of the inherited property are hardly recognized.”

The current civil law determines the share (legal inheritance) that children, spouses, parents, and siblings can inherit. If the deceased dies and does not leave a will, distribution is made accordingly.

Even if there is a will, children and spouses are guaranteed one-half of the legal inheritance, and parents and siblings are guaranteed one-third, which is called a reserved portion. It was introduced in 1977 as a legal mechanism to prevent specific heirs from monopolizing the inheritance and to protect the survival rights of the remaining surviving family members.

However, criticism has continued to be raised that the reserve system lags behind social changes, including excessively infringing on individual property rights.

The Constitutional Court announced its decision on this day after hearing a total of 40 cases of constitutional appeals filed by individuals and requests for unconstitutionality by the court.

In addition, the Constitutional Court judged that it was inconsistent with the Constitution to not have a supplementary system that could deprive members of the family who do not fulfill their duties. The Constitutional Court said, “Recognizing the reserved portion of an heir who has engaged in immoral acts, such as abandoning the deceased for a long period of time or mentally and physically abusing the deceased, is against the legal feelings and common sense of the general public,” and “It is unreasonable not to separately stipulate the reasons for loss of the reserved portion.” “He said.

In addition, the Constitutional Court also ruled that part of Article 1118 of the Civil Code, which does not recognize property gifted by the deceased to co-heirs who specifically supported the deceased for a considerable period of time or contributed to the creation of the deceased’s assets (contributory heirs) as an exception to the distribution of assets, was unconstitutional. The purpose is that the scope of property that serves as the basis for calculating oil reserves is too broad.

This decision is based on the Constitutional Court’s justification of the legislative purpose of the system itself in relation to the reserved portion system under the Civil Act and each reserved portion provisions constituting the reserved portion system (Articles 1112, 1113, 1114, 1115, 1116, and 1116 of the Civil Act). This is the first decision to comprehensively review and rule on the constitutionality of Article 1118), and as a result, it continues to recognize the constitutional legitimacy of the reserve system in that it is necessary to protect the survival rights of bereaved families and maintain close family solidarity even today. Some reserved portion provisions (Article 1112 No. 1 to 3 of the Civil Act, which does not stipulate actual reasons; Article 1112 No. 4 of the Civil Act, which stipulates the reserved portion of brothers and sisters; and Article 1008-2 of the Civil Act regarding contribution portion. It is significant in that it declared Article 1118 of the Civil Act, which does not have applicable provisions, unconstitutional (inconsistent with the Constitution) and urged legislative improvement.

Article 1112, Section 4 of the Civil Act, which was determined to be simply unconstitutional, loses effect from the time of pronouncement, and Article 1112, Nos. 1 to 3 and Article 1118, which was determined to be unconstitutional, can be amended by the legislator with a deadline of December 31, 2025. It will remain in effect until.

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