피상속인의 사망 후 인지된 자의 상속분가액지급청구권과 제척기간 ― 헌법재판소 2024. 6. 27. 2021헌마1588 결정을 중심으로 ―

Abstract

The Civil Act stipulates that the expiration period of the ‘claim for recovery of inheritance’ is “3 years from the date of knowledge of the infringement, or 10 years from the date of action of infringement” (Article 999 Paragraph 2). Also the Civil Act stipulates that a person(recognized child) who becomes a co-heir after the commencement of inheritance through recognition or final judgment may exercise the ‘claim for equivalent payment of inheritance share’ against other co-heirs (Article 1014). In this case, the expiration period of the ‘claim for recovery of inheritance’ applies to the exercise of the ‘claim for equivalent payment of inheritance share’. The expiration period of “10 years from the date of action of infringement” computes from the ‘date of division or disposal of the inherited property’ instead of the ‘date of recognition or final judgment’. According to such provisions of the Civil Act, if a person(recognized child) become aware of the fact that he or she is an co-heir of the decedent after 10 years from the date of division or disposal of the inherited property, even though becoming a co-heir 10 years after the decease of decedent through recognition or final judgment, he or she will be placed in a situation where he or she cannot exercise his or her rights as a legitimate heir (claim for equivalent payment of inheritance share) since the expiration period of 10-years has already passed. The Constitutional Court’s Decision 2021hun-ma1588 (June 27, 2024) is a decision that judges the unconstitutionality of the expiration period of 10-years which applies when a person who becomes a co-heir through recognition or final judgment after the commencement of inheritance exercises the ‘claim for equivalent payment of inheritance share’ against other co-heirs. In this case, the Constitutional Court accepted the Supreme Court’s interpretation of the legal nature of the ‘claim for equivalent payment of inheritance share’ and the starting point of the expiration period of 10-years. And then the Constitutional Court ruled that the expiration period of 10-years in Article 999 Paragraph 2 of the Civil Act which applied to the Article 1014 is unconstitutional, as it infringed on the basic right of property as well as the basic right of trial of the Constitution. There may be various interpretive issues raised on the legal nature of the ‘claim for equivalent payment of inheritance share’, whether the expiration period of ‘claim for recovery of inheritance’ applies to the ‘claim for equivalent payment of inheritance share’ or not. In this thesis, I organized the discussions of prior studies of academia and the precedents of the Courts, and then analyzed the legal theory of the Constitutional Court’s decision to examine its validity, thereby seeking the implications of the decision and suggesting an improvement proposal for the expiration period of the ‘claim for equivalent payment of inheritance share’.