상속회복청구권의 시효에 관한 관습법 실증

Abstract

The customary law stating “Claim for recovery of succession expires after 20 years since its initiation,” have existed before the effectivation of civil law and maintained its status as a part of customary law after acquiring legal authorization from Korean Supreme Court. However, after the unanimous decision was reached in 2003, the law ceased to be effective. The purpose of this study is to prove whether the customary law related to legal prescription of claim for recovery of succession existed or not. Despite lack of term referring to the claim for recovery of succession on both traditional legislation and civil customs, there was as term designated for those who pretend to hold the right of inheritance. Also, cases involving the claim for recovery of succession had been legally recognized and there had been actual trial cases requesting the restoration of recovery of succession. Existing studies have concluded that the claim for recovery of succession is not subjected to expiration based on customary law. However, this study have proved the existence of period of appeal of 30 and 60 yers regarding the Recovery of succession based on traditional legislation. On the other hand, there was no custom or traditional legislation stating the expiration of the claim for recovery of succession after a certain period of time. Preceding studies have evaluated the customary law of Joseon High Court stating ‘expiration due to prescription’ after the ‘passing of 20 years’ regarding the claims for recovery of succession as a distorted form of customary law creating the principle of regulations into a custom. However, proof of regulations regarding the passing of 20 years can be found in the 16th clause of ≪刑法大全≫ (Code of law established during late Joseon Dynasty) and the claim for the recovery of succession had been recognized in traditional law as well. On the other hand, the system of extinctive prescription cannot be proven through traditional legislation and should be considered as a customary law created by Joseon High Court. Customary laws related to succession had been recognized in Joseon High Court and continued to be legally effective in current Supreme Court. These customary laws may be evaluated to be distorted, established, and legislated due to the impact of Japanese occupation but such evaluation can be viewed to be established under the premise that judicial institutions of the time have created customary laws based on its subjective purposes. However, it would be more valid evaluation to consider customary law recognized by Joseon High Court as an entanglement of traditional legislation and customs with modern legal theories form Western influence that have been established as a customary law.