The reserve system was ruled unconstitutional for the first time in 47 years... The outlook for future oil refund claim lawsuits is:

On April 25, the Constitutional Court ruled that the reserved portion system, including Article 1112 of the Civil Act, was partially unconstitutional and inconsistent with the Constitution in a review and constitutional appeal.

“Brothers and sisters retention is unconstitutional”

The Constitutional Court ruled that the current civil law, which stipulates that brothers and sisters inherit a certain percentage of the inheritance regardless of the deceased's will, violates the Constitution. As a result, the effect of Article 1112, Paragraph 4 of the Civil Act, which states that 'brothers and sisters of the deceased are entitled to one-third of the statutory inheritance' was immediately lost at the time of the decision to be unconstitutional.

The Constitutional Court made this decision, pointing out that "it is difficult to find a valid reason for granting division of inheritance, even though brothers and sisters are hardly recognized for their contribution to the formation of inherited property or for their expectations of inherited property." Previously, the right to claim a reserved portion was an inheritance right that brothers and sisters could also claim, but this means that in the future, brothers and sisters will not be able to file a lawsuit for the return of a reserved portion based on the reserved portion.

“Reserves for spouses and immediate descendants are inconsistent with the Constitution.”

The Constitutional Court ruled that the part stipulating the statutory inheritance of spouses and lineal ascendants and descendants was unconstitutional because it did not specify the reasons for loss of reserved shares. Recognizing the reserved portion of an heir who has engaged in immoral acts, such as abandoning his or her parents for a long period of time or mentally and physically abusing them, is said to be contrary to the legal sentiments and common sense of the general public. Therefore, Article 1112 Nos. 1 to 3 of the Civil Act, which does not separately provide for the reasons for loss of reserved portion, creates an unfair and unreasonable situation in which a contributing heir must return the donated property in response to a non-contributory heir's request for return of the reserved portion. Article 1118 of the Civil Act was unanimously judged to be inconsistent with the Constitution as it was a legislative act that did not provide for Article 1008-2 to apply mutatis mutandis to reserved portions. The idea is that depending on the specific situation, such as immorality or neglect of a child by a parent, the reserved portion may be lost.

Inconsistent with the Constitution is a decision that temporarily remains in effect until the National Assembly revises the law due to concerns about confusion caused by a legal vacuum. Regarding the above two provisions, they called for legislative improvement, saying that they will remain in effect until revised by the legislator (National Assembly) with a deadline of December 31, 2025.

Forced inheritance distribution system, first Constitutional Court decision in 47 years

An official from the Constitutional Court explained, "This is the first decision to comprehensively rule on the legitimacy of the reserve system and the constitutionality of specific provisions." He added, "It continued to recognize the constitutional legitimacy of the reserve system in that it is necessary to protect the survival rights of bereaved families and maintain family solidarity even today, but it is significant in that it declared some provisions unconstitutional and called for legislative improvement."

The current civil law determines the share (statutory inheritance) that children, spouses, parents, brothers, and sisters can inherit. The reserved portion system is the minimum inheritance amount set by law and was introduced in 1977 to prevent specific heirs from monopolizing inherited property. Simply put, even if the deceased inherited all of his or her property through a will only to a specific heir, the remaining surviving family members who did not receive the inheritance can file a lawsuit based on the reserve system and receive the inherited property.

There have been repeated criticisms that this reserve system lags behind social change, including excessively infringing on individual property rights. In addition, controversy over the reserve system arose further as singer Goo Hara's biological mother, who had not been in contact with her since her death in 2019, claimed her inheritance rights, and the so-called 'Goo Hara Act', which limits the right to request reserves, was proposed in the National Assembly, but was abolished at the end of the 20th National Assembly session. Regarding the reserve system, which has repeatedly raised questions about its unconstitutionality, the Constitutional Court made a decision that had been pending for 47 years.

Inheritance lawyer Park Yong-du said, "We must intensively study inheritance-related issues that have become more complex after the Constitutional Court's decision and thoroughly prepare for the complexity of the proof relationship, such as the degree of corrupt behavior and the contribution to the reserved portion, in inheritance disputes related to the reserved portion, which are continuously increasing in the future." He predicted, "If a lawsuit is filed or a reserved portion lawsuit is filed due to the decision of the Constitutional Court, the outcome of the lawsuit may vary depending on the lawyer's capabilities, so it seems that more professional lawyers will be preferred."

Help = Attorney Park Yong-du, Daeryun Inheritance and Gasa Group, Law Firm (Limited)

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