북한주민의 상속회복청구권과 제척기간 - 대법원 2016. 10. 19. 선고 2014다46648 전원합의체 판결 -

Abstract

This study is about the case that grandsons who defected North Korea demanded the claims for recovery of inheritance. Their father was taken to North Korea during the Korean War and died there. Act on the Special Cases concerning Family Relations and Inheritance between South and North Koreans regulates on Article 11 Clause 1 that North Koreans can file suits against claims for recovery of inheritance, there is no regulations on exclusion period though. This made different decisions by the trial court and the court of appeals. The trial court accepted the claims of the plaintiff that the Act was superior to the Article 999 of the Civil law which regulates exclusion periods after 10 years. The court of appeals rejected the claims on the basis that the exclusion periods also applies to the North Koreans. The argue is like this, “Should the claims for the recovery of inheritance by North Koreans who the Act applies on expire after 10 years by regulations on Article 999 of the Civil law”. The Supreme court judged that claims for recovery of inheritance expire after exclusion period by the Civil law even if the special situation of the Separation and defection was considered, on the basis that it could hamper the stability of the law system. There has been various speculations on the exclusion periods of claim for recovery of inheritance by North Koreans. This study shows the case and reviews theories and cases in favor of the Supreme court decision.