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The calculation of the shortfall in legal reserve of inheritance shall be the amount deducted from the legal reserve of inheritance. The Supreme Court sentenced on August 19, 2021, 2017Da235791, said, “When calculating the shortfall in legal reserve of inheritance that received special profits among joint heirs, special profits and net inheritance are deducted from the legal reserve of inheritance, and the net inheritance to be deducted is calculated based on a specific inheritance taking into account the special profits of the relevant legal reserve.” This ruling is significant in that it is the first ruling to reverse the so-called 'legal theory' adopted by the court below and adopt a 'specific theory' when calculating the net inheritance of the legal reserve of inheritance. Even if the specific inheritance cannot be known because the request for division of inherited property is not preceded, the court dealing with a claim for the return of legal reserve of inheritance shall interpret that the specific inheritance should be identified with special interests in mind and reflected in the calculation of net inheritance. In the end, it can be said that there is a very close correlation between the calculation of the shortfall in legal reserve of inheritance and the division of inherited property. However, the Supreme Court's 2017Da235791 ruling alone cannot determine which theory was taken between the 'specific inheritance standard theory' and the 'a theory of non-existence of a excess special beneficiary' discussed in the division of inherited property. Therefore, it is necessary to analyze the Supreme Court's rulings on June 30, 2022, such as the rulings of 2017s98, 99, 100, and 101, which dealt with the case of the trial for the division of inherited property. Some scholars say that the Supreme Court 2017s98 ruling above adopted 'a theory of non-existence of a excess special beneficiary'. However, according to my analysis through a specific calculation process, the above ruling does not accept 'a theory of non-existence of a excess special beneficiary'. The above decision is significant in that it has been declared that the excess special income is divided according to the 'statutory inheritance' of other joint heirs excluding excess special beneficiaries. While the theory of non-existence of a excess special beneficiary treats excess special beneficiaries as non-successors, the 'statutory inheritance standard theory’ that I propose has a decisive difference in treating them as heirs.
H.M. Lee (Wed,) studied this question.