On April 25, 2024, the Court determined that (1) Article 1112, Item 4 of the Civil Act, prescribing the legal reserve of inheritance for siblings of a decedent, is simply unconstitutional; (2) Article 1112, Items 1 through 3 of the Civil Act, omitting reasons for disqualification of a legal reserve of inheritance, and Article 1118 of the Civil Act, omitting a provision for the mutatis mutandis application of Article 1008-2 of the Civil Act, are all nonconforming to the Constitution and are to continue to apply until amended by the legislature by December 31, 2025; and (3) Articles 1113, 1114, 1115, and 1116 of the Civil Act are constitutional.
While agreeing with the Court’s opinion declaring Articles 1112 and 1118 of the Civil Act unconstitutional (nonconforming to the Constitution) as indicated above, Justices Lee Youngjin, Kim Kiyoung, Moon Hyungbae, and Kim Hyungdu dissented in part. They expressed the view that the following provisions are also nonconforming to the Constitution: (1) the second sentence of Article 1114 of the Civil Act, requiring a gift to be included in the calculation of base property for a legal reserve of inheritance, regardless of the timing of the gift, if both the decedent and donee recognized that making the gift would cause loss to a person entitled to a legal reserve of inheritance; and (2) the portion of Article 1118 of the Civil Act providing for the mutatis mutandis application of Article 1008, mandating a gift made by a decedent to a co-inheritor as a special benefit be included in the calculation of base property for a legal reserve of inheritance, regardless of the timing of the gift.
Dissenting Justices Lee Youngjin and Kim Hyungdu also filed a concurring opinion on Article 1112 of the Civil Act and another concurring opinion on Article 1113, Section (1) and Article 1115, Section (1) of the Civil Act. The first concurrence agreed with the conclusion of the Court’s opinion that Article 1112 of the Civil Act is unconstitutional, but for a different reason. It argued that the portion of Article 1112 prescribing an equal inheritance share for the spouse and direct lineal descendants of a decedent also violates the Constitution. The second concurrence expressed additional views on both Article 1113, Section (1) of the Civil Act, which includes even gifts made for public interest purposes or family business succession in the calculation of base property for a legal reserve of inheritance, and Article 1115, Section (1) of the Civil Act, which provides for the return of the original object of property when returning a legal reserve of inheritance. This concurrence suggested that, although these provisions do not violate the Constitution, they present issues such as conflicts with the decedent's intention or the public interest, and thus, legislative amendments are desirable.