상속회복청구권 제척기간에 관한 헌법적 쟁점

Abstract

1. Article 999 paragraph 2 of the Civil Act provides that the claim for recovery of inheritance shall lapse at the expiration of ten years from the date the right of inheritance is infringed (hereinafter referred to as ‘exclusion period’). According to the precedents of the Supreme Court, the inheritor retrospectively loses the ownership at the time of inheritance when the exclusion period expires. The purpose of the provision is to enhance legal stability at the expense of the inheritor’s property right. However, questions arise whether such purpose fully justifies the harsh limitation on property rights of the inheritor; the peculiar and complex requirements and effects of the claim for recovery of inheritance rather impede legal stability and predictability. 2. According to the interpretation of the Supreme Court and district courts, the ten-year exclusion period is applied to a claim made on Article 1014 of the Civil Act, regardless of the date of affiliation or the final judgment. In 2005Hun-Ba89, the Constitutional Court held the exclusion period applied to the claim made on Article 1014 constitutional. However, it is important to note that what the Constitutional Court confirmed was the constitutionality of the provision. The majority of the Justices essentially agreed on the unconstitutionality of the provision, when it is applied according to the judicial interpretation. 3. The exclusion period of the claim for recovery of inheritance is expected to neglect the rights of inheritors that reside in North Korea, especially when exchanges between South and North Korea occur more frequently, or in case of the unification. Debates exist over a new legislation that would make an exception to Article 999 paragraph 2 of the Civil Act for North Korean inheritors. If adopted, it would extend the exclusion period for three years, and the additional three-year period would begin when the obstacles to filing a lawsuit is removed- from the day of unification, or when North Koreans can freely travel across the border. However, such legislation contains the problem of depriving property rights by a retroactive legislation. Moreover, the constitutionality of the exclusion period of the claim for recovery of inheritance itself is being doubted. This exceptional system has unclear function, not to mention its partial protection of rights involved. Making an extra exception would disrupt legal stability, a major justification for the existence of the exclusion period. The problems found in applying the exclusion period to North Koreans reveal the inherent issue that exclusion period bears from the start. A fundamental revision of the existing provision is in need.