남한 내 북한주민 관련 가족법적 실무상 쟁점

Abstract

Issues on Family Law Related Claimsof North Korean Residents and Refugees in South Korean Court Kim, Young-gi Recently, there has been a dramatical increase in the Family Law-related claims of North Korean residents and refugees such as action for divorce, nullity suit, claim for annulment of bigamy, confirmation of existence of biological parental relation, and recovery of inheritance. These type of cases (hereinafter “the aforementioned cases”) should be treated in accordance with the theory on the special inter-Korean relations, which is based on the premise that both Koreas do not acknowledge each other as nations, and at that one party's domestic law cannot be directly applied to inter-Korean relations. It also assumes that the two Koreas act as different players of international laws with different national identities. Thus, we should handle the aforementioned cases similarly to suits with foreign elements because both Koreas have established their respective family relationship order under their respective exclusive legal systems. Under the current Private International Law of South Korea, South Korean courts have the jurisdiction over the aforementioned cases, and the governing law shall be determined by inferring from the private international law of South Korea. Therefore, North Korean laws may be applied to South Koreans or have effectiveness in Seoul unless those provisions are against public order and good morals. In the aforementioned cases, the judge might want to decide on whether the attorney of North Korean residents or refugees has the legitimate right of legal representation by examining the genuineness of the identification card of DPRK, a warrant of attorney, and the video tapes which contain the process of granting the agency authority. The court is able to send the lawsuit documents to North Korean residents according to the process of overseas service by public notice. Under the Act on the Protection and Settlement Support of Residents Escaping from North, North Korean refugees are able to easily register their entry and recover South Korean citizenship with the help of the Minister of Unification. In addition, the Act clarifies international and territorial jurisdiction, and the means of delivering documents in the action for divorce under a given condition. In other actions for divorce and nullity suits which are not defined in the Act, we can deal with the cases by referring from those clauses. On February 10, 2012, the Act on Special Cases Concerning Family Relationships, Inheritance, etc. Between Residents in South and North Korea was enacted. Under the Act, claims for annulment of bigamy on the second marriages established before the Ceasefire Agreement in 1953 are not permitted. In other cases for annulment of bigamy, the second marriage could be granted an annulment according to Article 816 of the Civil Act of South Korea. The Act has also special provisions on the exclusion period of paternity suit. However, it does not have those special clauses on the exclusion period of claim for recovery of inheritance, which leads to numerous disputes. In order to reasonably resolve the aforementioned cases under the current Constitutional Law and the special inter-Korean relations, the exclusion period of the claim by North Korean residents and refugees should be established as three years from the time when the infringement on the right of inheritance is known to the plaintiff on the premise that he was actually able to exercise the right through the analogical application of Article 166 of the Civil Act and the former part of the second clause of Article 999, and the stipulation for the exclusion period of ‘10 years from the time when the usurpation is taken place’ shall not be applied.