1. When the decedent donated the property to his heir or to a third party before the legal reserve system has been created and the ownership of the property has been transferred to the donee upon completion of the performance, even if inheritance commences after the decedent died after the enforcement of the Civil Act amended by Act No. 3051 on December 31, 197 (hereinafter “Revised Civil Act”), the donated property is retroactively subject to a claim for restitution by the legal reserve system.

This is because the provisions of the amended Civil Code are applied to donations whose performance has been completed before the enforcement of the amended Civil Code, it is limited or infringed by retroactive legislation, and it is contrary to the purport of Paragraph 2 of the Addenda to the amended Civil Code.

(Supreme Court Decision 2010Da78722 Decided December 13, 2012). The legal relationship with respect to donated property, the legal relationship of which has already been determined prior to the enforcement of the amended Civil Act, should be the same as whether the claimant is the person liable for return, or the person liable for return. Therefore, it is reasonable to view that the property does not include the underlying property for calculation of legal reserve when the person liable for return of legal reserve of inheritance received a donation from the inheritee before the amended Civil Act enters into force

However, the purport of the legal reserve of inheritance is to guarantee the inheritance rights of the legal heir and to ensure fairness among the inheritors. Article 1115(1) of the Civil Act provides, “The person with the right to legal reserve of inheritance may claim the return of the property within the extent of the shortage when there is a shortage in the legal reserve of inheritance due to the gift or testamentary gift of the inheritee,” thereby denying the right to claim the return of the legal reserve of co-inheritors

This should be viewed equally in cases where the property donated prior to the enforcement of the amended Civil Code exceeds the legal reserve of inheritance. Therefore, the legal reserve of inheritance system does not consider it as special benefits solely on the ground that the property was donated prior to the enforcement of the amended Civil Code.