[Viewpoint] On the Abolition of the Statutory Reserved Portion System for Siblings

Choi Jun-seon, Honorary Professor at Sungkyunkwan University School of Law

The prose collection "Me and My Father" by Yan Lianke, a controversial writer in modern China, has the subtitle "Lonely and Cold Light" on page 60. Even after reading this section to the end, I did not understand why the title was chosen this way, so I read it three times repeatedly. Regarding "light," on the same page, there is only a phrase that says, "It seemed that there were far more bundles of light illuminating the future in my life than for others."

In 1960s China, the father's brothers and their children were all one family. Yan Lianke's eldest uncle was a person who carried a heavy knitting machine on his back, going around the village knitting socks. When he returned home after a few days, he would distribute candy and malt syrup to the children. Since there was never enough candy and malt syrup to go around evenly for everyone, his biological children always received the least or sometimes none at all. The fourth uncle, who worked at a city factory, came down to his hometown and without hesitation gave Yan Lianke a stylish and fancy single Dacron shirt with a white base and blue checkered pattern. This was because Yan Lianke, a middle school student, simply asked for it. Korea was in a similar situation around that time. Even up to the fourth cousin, everyone was considered one family.

The Ministry of Justice recently announced that it will propose a partial amendment to the Civil Act excluding siblings from statutory reserved portions (유류분) in inheritance. The statutory reserved portion guarantees a minimum share of inheritance to heirs by law, regardless of the deceased's will. Under this system introduced in 1977, spouses and direct descendants (children and grandchildren) are entitled to half of their legal share, while direct ascendants (parents and grandparents) and siblings receive one-third as their reserved portion, even without a will. On the other hand, the deceased cannot fully bequeath their property to a third party outside the family through a will without granting the reserved portion. This system was originally intended to ensure a minimum inheritance share for women and other children, as inheritance was mainly passed to the eldest son in the past. The Ministry of Justice explained that since this system was introduced based on an agrarian society and extended family system over 40 years ago, "a consensus has formed that as sibling bonds have weakened compared to the past, the freedom and effectiveness of wills should be strengthened to allow the deceased to dispose of their property more freely."

The Ministry views modern sibling relationships, where bonds have weakened, as no longer constituting an economic community. However, if the Ministry believes that public consensus has been formed on this point, it raises questions about the logic of uniformly treating "related parties" defined in numerous laws such as the Commercial Act, Capital Market Act, Fair Trade Act, Financial Holding Companies Act, Banking Act, Venture Business Promotion Act, Basic National Tax Act, Corporate Tax Act, Income Tax Act, Inheritance and Gift Tax Act, and Value-Added Tax Act as economic communities. The scope of related parties under these laws is mostly defined as "blood relatives within the sixth degree and relatives by marriage within the fourth degree."

The Ministry of Justice's explanation is not wrong. However, siblings are second-degree relatives. If second-degree relatives are not considered family, is it appropriate to include blood relatives within the sixth degree and relatives by marriage within the fourth degree under regulatory frameworks and surveillance? It is explained that Germany and France do not recognize statutory reserved portions among siblings, but do these countries have a Korean-style related party system?

Choi Jun-seon, Professor Emeritus, School of Law, Sungkyunkwan University