상속회복청구권 행사기간 경과의 효과

Abstract

The Korean Civil Act(KCA) article 999 defines about the Claim for Recovery of Inheritance. According to KCA art. 999 clause 2, the Claim for Recovery of Inheritance shall lapse at the expiration of three years from the date he comes to know the infringement, or ten years from the date the right of inheritance is infringed. However, it is not clear what kind of Legal Effect occurs after Expiration of the Period. The Korean Supreme Court(KSC) ruled that a real Heir should lose his own Heirship and on the contrary to that person who pretends to have the right of inheritance should acquire Heirship retroactively if the Claim for Recovery of Inheritance becomes extinct by Expiration of the Period. But such Ruling is an improper conclusion as follows. First of all, the Exercising Period of the Succession Recovery Claim is not Extinctive Prescription, but Exclusion Period. The Retroactive Effect does not correspond with a Period of Exclusion. Presumably, KSC took account of inheritance's distinct characteristics. However, the special treatment by Inheritance is for a real Heir, not for a false Heir. There is not a special Necessity to admit a Retroactive Effect. It is also undesirable to correlate a Heirship with the Effect of Expiration of the Period. A real Heir doesn't lose Heirship itself, even if the Claim for Recovery of Inheritance shall lapse at the expiration of Exercising Period. After Expiration of the Period, A real Heir still has right of succession. To conclude, a real Heir loses the ownership of Property infringed upon expiration of a Period at KCL art. 999 (2). And on the contrary, a person who pretends to have the right of inheritance becomes the Owner of that Property with a future. According to KCA 999 (2), it can be comprehended that only the (Right of) Claim for Recovery of Inheritance may lapse and the Ownership of Property remains to a real Heir. But when interpreted in this way, the Ownership becomes empty Right. The institutional Purpose of KCL art. 999 (2), relationship of inheritance must be decided as soon as possible, should also be considered. Meanwhile, the Question, whether a false Heir claims the Effect of the Exporation of the Period aggressively, is another matter. In these cases, the Fact which the Right lapses by Exclusion Period should be used as a defensive measures only. Such a conclusion is based on the Principle of good faith.