제1장 상속에 관한 사건

제1절 상 속·································································································· 3
1. 의 의····················································································3
2. 상속의 형태············································································ 3
3. 상속의 개시············································································ 4
4. 상 속 인·················································································8
5. 배우자의 상속순위································································· 13
6. 특별연고자에 대한 분여와 국가귀속··········································14
7. 대습상속···············································································15
8. 상속인의 자격과 결격·····························································24
9. 상속의 효과·········································································· 28
10. 재사용 재산 등······································································37
11. 상 속 분···············································································44

제2절 상속회복청구권····················································································54
1. 의 의··················································································54
2. 상속회복청구권의 당사자························································ 55
3. 행사의 방법·········································································· 62
4. 행사의 효과·········································································· 62
5. 상속회복청구권의 소멸··························································· 63
6. 상속재산 분할합의의 합의해제 가능성·······································68
7. 상속재산 분할협의의 채권자취소권의 대상여부···························68
[서식 1] 상속회복청구의 소························································· 68

제3절 상속의 승인이나 포기를 위한 기간연장허가신청··································· 80
1. 의 의··················································································80
2. 청구권자···············································································82
3. 승인, 포기의 취소금지···························································· 83
4. 상속포기의 효력···································································· 85
5. 관 할··················································································86
6. 심 리··················································································86
7. 심 판··················································································88
[서식 2] 상속승인(포기)기간연장허가청구 / 89
[서식 3] 상속승인(포기)기간연장허가청구 / 90
[서식 4] 상속재산포기 심판청구 / 91

제4절 상속재산보존을 위한 처분····································································93
1. 의 의··················································································93
2. 청구권자···············································································94
3. 변제거절권············································································94
4. 관 할··················································································95
5. 심 리··················································································95
6. 심 판··················································································95
[서식 5] 상속재산 보존명령청구 / 96

제5절 상속의 한정승인이나 포기 또는 그 취소신고의 수리·····························97
1. 상속의 한정승인신고 또는 포기신고의 수리······························· 97
[서식 6] 재산상속의 한정승인청구 / 110
[서식 7] 재산상속의 한정승인청구 / 111
[서식 8] 상속한정승인청구 / 115
[서식 9] 재산상속의 한정승인 심판청구서 / 117
[서식 10] 상속재산의 한정승인(포기) 신고 / 118
[서식 11] 상속재산의 한정승인 신고 / 119
[서식 12] 청구이의의 소장(한정승인자의 대응) / 121
[서식 13] 상속한정승인공고 / 123
2. 상속의 한정승인 취소신고 또는 포기 취소신고의 수리···············124
[서식 14] 재산상속 한정승인신고 포기 / 126
[서식 15] 상속포기심판청구 / 127

제6절 상속재산 감정인의 선임·····································································128
1. 의 의················································································128
2. 청구권자·············································································129
3. 관 할················································································129
4. 심리 및 심판······································································· 129
[서식 16] 상속재산감정인 선임청구(라류 제29호 사건) / 130

제7절 공동상속재산을 위한 관리인의 선임··················································· 131
1. 의 의················································································131
2. 공동상속재산의 관리 및 처분·················································132
3. 청구권자·············································································132
4. 공동상속재산에 관한 소송의 당사자········································132
5. 관 할················································································133
6. 심리 및 심판······································································· 133
[서식 17] 공동상속재산을 위한 관리인 선임청구 / 134
[서식 18] 공동상속재산을 위한 관리인 선임청구 / 135

제8절 상속재산의 분리················································································ 137
1. 의의 및 다른 제도와의 관계·················································· 137
2. 청구권자·············································································138
3. 관 할················································································138
4. 청구의 시적 한계································································· 139
5. 심 판················································································139
6. 심판의 효력·········································································139
7. 재산분리의 대항요건·····························································140
[서식 19] 상속재산 분리심판청구서 / 142
[서식 20] 상속재산분리청구서 / 143
[서식 21] 상속재산분리청구서 / 145

제9절 상속재산 분리 후의 상속재산 관리에 관한 처분································· 146
1. 의 의················································································146
2. 분리후의 상속인의 관리의무 등··············································147
3. 관 할················································································147
4. 절차의 개시·········································································147
5. 심리 및 심판······································································· 148
[서식 22] 상속재산분할협의서 / 148

제10절 상속인의 존부가 불명확한 때 관리인의 선임 및 그 공고와
재산관리에 관한 처분········································································· 150
1. 의 의················································································150
2. 상속인의 부존재에 해당되지 아니하는 경우····························· 151
3. 청구권자·············································································151
4. 상속재산관리의 권리와 의무·················································· 151
5. 관 할················································································152
6. 심 리················································································152
7. 심판 - 상속재산관리인의 선임과 상속재산 관리에 관한 처분········152
8. 상속재산관리인선임의 공고····················································153
[서식 23] 상속재산관리인 선임청구 / 157
[서식 24] 상속재산관리인 선임청구 / 159
[서식 25] 상속재산관리인 선임청구 / 160
[서식 26] 상속재산관리인의 선임공고 / 162

제11절 상속인 수색의 공고··········································································· 163
1. 의 의················································································163
2. 청구권자·············································································164
3. 관 할················································································165
4. 심리 및 심판······································································· 165
[서식 27] 상속인 수색공고청구(1)(라류 제34호 사건) / 165
[서식 28] 상속인 수색공고청구(2)(라류 제34호 사건) / 167
[서식 29] 상속인수색의 공고 / 168

제12절 상속재산의 분여················································································169
1. 의 의················································································169
2. 청구권자·············································································169
3. 관 할················································································170
4. 심 리················································································171
5. 심 판················································································172
6. 재산분여의 효과···································································172
7. 상속재산의 국가 귀속 절차····················································172
[서식 30] 상속재산분의 분여청구(라류 제35호 사건) / 174
[서식 31] 상속재산의 분여청구 / 176
[서식 32] 특별연고자에 대한 상속재산의 분여청구서 / 177

제13절 기여분의 결정··················································································· 179
1. 의 의················································································179
2. 기여분의 결정 절차······························································ 180
3. 기여분권리자의 범위 및 특별수익자의 상속분과의 비교············· 181
4. 기여의 내용과 정도······························································ 182
5. 공동상속인 전원이 같은 정도의 기여를 한 경우의 기여분·········· 185
6. 상속인 전원이 동일한 정도의 특별한 기여를 하였지만,
일부 상속인만이 기여분 주장을 할 경우의 기여분 산정············· 185
7. 기여분이 있는 경우의 상속분 산정········································· 186
8. 1996년 이후 2006년 말까지 배우자의 기여분결정청구사건에 대한
서울가정법원의 심판례 분석결과············································ 187
9. 정당한 당사자······································································192
10. 관 할················································································193
11. 심 리················································································193
12. 심 판················································································197
13. 기여분 산정시 고려해야 할 상속분의 수정과 관련된 문제들······· 198
[서식 33] 기여분심판청구 / 200
[서식 34] 기여분 등 심판청구 / 202
[서식 35] 기여분등심판청구 / 205
[서식 36] 상속재산분할청구에 대하여 기여분반대청구서 / 207

제14절 상속재산의 분할에 관한 처분·····························································224
1. 의 의················································································224
2. 상속재산의 분할청구·····························································224
3. 상속재산분할의 당사자··························································225
4. 분할의 대상인 상속재산························································ 228
5. 관 할················································································231
6. 심판청구·············································································232
7. 분할의 기준·········································································234
8. 구체적 상속분의 산정방법····················································· 236
9. 분할의 방법·········································································244
10. 심 판················································································245
11. 심판의 효력········································································ 246
[서식 37] 상속재산분할 심판청구 / 252
[서식 38] 상속재산분할 심판청구 / 254
[서식 39] 상속재산분할 심판청구 / 256
[서식 40] 특별대리인 선임청구(상속재산 협의분할의 경우) / 258
[서식 41] 답 변 서 / 279
12. 상속의 포기········································································ 281
[서식 42] 상속포기서 / 285

제15절 상속재산 파산제도·············································································286
1. 상속재산 파산제도 도입 취지·················································286
2. 상속채무 청산을 위한 제도····················································287
3. 상속재산 파산제도의 장점····················································· 288
4. 상속재산 파산 신청절차························································ 289
5. 상속재산 파산의 효과··························································· 293

제2장 유류분반환청구에 관한 사건

1. 유류분의 의의······································································301
2. 유류분권과 유류분권리자·······················································303
3. 유류분권의 포기···································································303
4. 유류분권리자와 유류분의 비율··············································· 304
5. 유류분의 산정······································································307
6. 유류분반환청구권·································································323
[서식 43] 유류분반환청구의 소 / 351
[서식 44] 유류분반환을 원인으로 한 소유권이전등기청구의 소 / 357
[서식 45] 유류분반환청구의 소 / 360
[서식 46] 유류분권리 포기서 / 362

제3장 상속세의 신고

제1절 상속세 총칙·······················································································373
1. 상속세의 과세방식································································373
2. 상속세 계산구조···································································375
3. 상속세의 과세대상································································376
4. 납세의무의 범위···································································377
5. 상속세 납부의무 등······························································ 378
6. 상속세 납세의무자································································379
7. 관 할················································································382

제2절 총상속재산························································································ 383
1. 개 요················································································383
2. 본래의 상속재산···································································383

제3절 상속세과세가액의 계산·······································································392
1. 과세가액의 계산구조·····························································392
2. 가산하는 사전증여재산··························································393
3. 공과금?장례비용?채무의 공제·················································395
4. 비과세 상속재산···································································397
5. 과세가액 불산입···································································398

제4절 상속세 과세표준················································································ 399
1. 개 요················································································399
2. 상속공제의 내용···································································400

제5절 상속세의 계산····················································································410
1. 산출세액의 계산···································································410
2. 세액공제·············································································411
3. 문화재자료 등에 대한 상속세의 징수유예································ 415

제6절 상속세 신고·······················································································417
1. 신고납부기한·······································································417
2. 상속세 신고시 유의사항························································ 417
3. 상속재산의 평가···································································420
4. 상속세의 납부······································································424
5. 상속재산의 확인···································································426
6. 상속세신고서 작성사례(상속세 계산 포함)································427

제4장 증여세의 신고

제1절 개 요·······························································································455
1. 증여세의 개념 및 납부의무자·················································455
2. 증여세 과세대상···································································455
3. 증여자의 연대납세의무··························································456
4. 일반증여·············································································457
5. 과세특례·············································································464
6. 특수관계법인과의 거래를 통한 이익의 증여의제······················· 466

제2절 증여세 과세관할 및 납부기한 등························································ 467
1. 과세관할·············································································467
2. 납부기한·············································································468

제3절 증여세의 계산구조 및 과세표준··························································468
1. 증여세계산구조····································································468
2. 증여세 과세표준···································································470

제4절 증여세의 세율 및 가산세··································································· 471
1. 세 율················································································471
2. 가 산 세············································································· 472

제5절 증여세 신고시 유의사항·····································································473
1. 증여세 신고서 작성······························································ 473
2. 증여세 신고시 제출서류························································ 473
3. 증여재산의 증여일로 보는 시기··············································474
4. 신고기한 내 증여세를 신고?납부를 하지 아니할 경우 불이익······474

제6절 증여재산의 평가················································································ 475
1. 증여재산가액의 시가평가·······················································475
2. 부동산의 보충적 평가 방법····················································476
3. 유가증권의 평가방법·····························································477
4. 저당권 등이 설정된 재산의 평가············································ 479

제7절 증여세의 납부····················································································480
1. 증여세 분할 납부································································· 480
2. 증여세 분납 방법································································· 480
3. 증여세 연부연납 방법··························································· 481
4. 증여세 물납·········································································481
5. 연부연납 세액에 대한 물납가능성···········································481
6. 증여세의 신용카드 납부가능성··············································· 482

제8절 증여세의 계산 및 신고서 작성 사례··················································· 482
1. 증여세신고서 작성 사례(배우자로부터 아파트를 증여받은 경우)··482
2. 증여세신고서 작성 사례[모로부터 아파트(담보대출 1억원 포함)를
증여받은 경우]·····································································488
3. 증여세신고서 작성 사례(부로부터 재차 증여받는 경우)··············489
4. 증여세신고서 작성 사례(영농자녀가 농지를 증여받은 경우)········490
5. 증여세신고서 작성 사례(중소기업 등 가업승계 주식을 증여받은
경우)··················································································493
6. 증여세신고서 작성 사례(특수관계법인과의 거래를 통한 이익의
증여의제)············································································500

제5장 상속등기

제1절 상속에 의한 소유권보존등기·······························································514
1. 총 설················································································514
2. 상속인에 의한 소유권보존등기절차········································· 514
3. 소유권보증등기신청서 서식 및 작성례·····································518

제2절 상속인을 원인으로 하는 소유권등기··················································· 527
1. 총 설················································································527
2. 신 청 인············································································· 527
3. 신청정보·············································································528
4. 첨부정보·············································································529
5. 소유권이전등기신청(상속)서 서식 및 작성례·····························534

제3절 협의분할을 원인으로 하는 소유권이전등기신청··································· 542
1. 총 설················································································542
2. 신청기간·············································································542
3. 형식 및 방법······································································· 542
4. 협의분할서 작성방법·····························································542
5. 특별대리인의 선임이 필요한 경우···········································543
6. 소유권이전등기신청(협의분할에 의한 상속)서 서식 및 작성례·····544

제4절 협의에 의한 상속재산의 분할등기 후재협의에 의한 경정등기·············· 552
1. 경정등기의 가능성································································552
2. 경정등기의 방식···································································552
3. 일반경정등기와의 차이··························································552
4. 신청정보 및 첨부정보··························································· 552
5. 등기의 실행·········································································553
6. 경정등기의 한계···································································553
7. 협의에 의한 상속재산의 분할등기 후 재협의에 의한 경정등기
신청서 및 작성례································································· 553

제5절 증여를 원인으로 한 소유권이전등기 신청··········································· 562
1. 개 요················································································562
2. 신청인 및 신청방법······························································ 562
3. 신청기간·············································································562
4. 증여를 원인으로 한 소유권이전등기 신청서 및 작성례···············563

제6절 유증을 원인으로 한 소유권이전등기··················································· 572
1. 개 요················································································572
2. 신 청 인············································································· 572
3. 등기신청방법·······································································573
4. 등기신청절차·······································································574
5. 유증을 원인으로 한 소유권이전등기 신청서 및 작성례···············576

제6장 상속 및 유류분에 관한 중요판례 정리

제1절 상 속·······························································································586
1. 총 칙················································································586
2. 상 속 인············································································· 590
3. 상속의 효력·········································································593
4. 상속의 승인 및 포기·····························································605
제2절 유 류 분····························································································612

제7장 청구취지 기재례

1. 상속에 관한 사건································································· 617

제8장 가사소송에서 자주 묻는 질문 정리

제1절 상속포기와 한정승인··········································································622
제2절 상속재산분할····················································································· 627
제3절 유언증서····························································································630
제4절 (특별) 대리인 선임············································································ 632
제5절 실종선고····························································································634

부 록
* 증여세 신고 서식 목록·············································································· 641
* 상속세 신고 서식 목록·············································································· 671
* 소송참고자료·····························································································702
* 참고문헌··································································································· 708
* 서식색인··································································································· 709
* 판례색인··································································································· 710
* 사항색인··································································································· 714