전통법 및 관습법에서 시효제도의 인정가능성

Abstract

This study compared the existing system of prescription(時效) and systems of “period of the appeals(呈訴期限)” and “period of judgement(聽訟期限)” in traditional legislation. This study also investigated whether the civil prescription system could be admitted or not in traditional legislation or customary law. “Gwa-Han Law(過限法)” at 5th year in Joseon Dynasty is a representative provision of the period of the appeals(呈訴期限) in traditional legislation. The present study revealed the regulation of the 5-year Gwa-Han Law as well as legislative processes and its meaning of the 60-year․30-year Gwa-Han Law. In the early Joseon Dynasty, cases of sales of other people's goods or claims for recovery of inheritance were not covered by the 5-year Gwa-Han Law. Instead, there was no time limitation for indictment. To prevent these irregularities, The 60-year Gwa-Han Law was legislated, followed by the 30-year Gwa-Han Law. When the objects in the litigation were private slaves or private lands and houses, the 60-year Gwa-Han Law was applied. On the other hand, the 30-year Gwa-Han Law was applied when the objects of litigation were public slaves. The 60-year Gwa-Han Law was the most commonly applied law in the civil judgement in the Joseon Dynasty era. In the Early Modern Korea Era, a system of possible period of the judgement(聽訟期限) was introduced and it limited the period for indictment up to 20 years. The time limit for indictment was further restricted to 10 years by the Civil Procedure Period Rule(民事訴訟期限規則) in 1908. At 1912, Civil Decree on the Joseon Dynasty(朝鮮民事令) brought Japanese civil law, introducing the prescription system of western civil procedure into the Korean legal history. Actually, system of period of the appeals and period of judgement in traditional legislation is different from the existing system of the prescription system, although it has a mixed nature of the period of exclusion and the prescription system. First, extinctive prescription admitted adjournment but the period of the appeals did not admit adjournment. Second, extinctive prescription admitted retroactive effect, whilst the period of the appeals has the prospective effect. Finally, the extinctive prescription includes a starting point of reckoning of prescription, while the period of the appeals does not include a starting point of reckoning. An aim of the period of the appeals in traditional legislation was to achieve the effectivity of judicial administration even though it also was to relieve rights of people. Even if the period of the family appeals can be considered as parts of the prescription system and it can be recognized as a system of extinctive prescription, it cannot be recognized as the prescription system for acquisition. Therefore, it is reasonable to assume that the prescription system for acquisition was not recognized under Korea customary law.