남북주민의 가족관계와 상속 —「남북 주민 사이의 가족관계와 상속 등에 관한 특례법」을 중심으로—

Abstract

It has been over half a century since the Separation of North and South Korea. There are people whose family members are not allowed to live together though the rest are accustomed to this circumstances. Fortunately, government and NGO are endeavoring to relieve the burden of separated families humanistically. So comes the increase of contacts between two people and uprising of legal issues. In cope with these, there have been assertions to prepare for the problems like the inheritance rights and family relations of North and South Koreans. Even, some of those issues were took into courts. Since the Civil Law was not meant to deal with special circumstance like the separation of Korea, there was need to make special Acts. The Ministry of Justice arranged 'The Inheritance Rights and Family Relations of North and South Koreans' and it was publicated on 10th of February, 2012, after getting assent from Assembly. This study was intended to introduce and review the special Acts. The Acts consist of 6 chapters and 23 articles and deal with jurisdiction, family relations, inheritance and management of property, though this study deals only with enacting process, the explanation of the articles and reviews. Principal reviews are on bigamy, the adjudication of disappearance, the suit of confirmation of existence of biological parental relation, the suit of claim for recognition, the return of inherited property, the claim for recovery of inheritance and qualified acceptance. The parts dealing with family relations and inheritance rights of North Koreans are generally persuasive and reasonable, although in its detail it needs amendments and it needs more coverage on legislation. So, this study suggests a few ideas on legislation. Firstly, it would be better if the sentences of the articles were not complicated. Secondly, special regulations on the extension of exclusion period of the claim for recovery of inheritance. And thirdly, it is better to keep the stance of not approving special law on extinctive prescription of rights to claim the return of the legal reserve of inheritance. In legislation, it could be the decision of legal policy, nevertheless legislation should be balanced between specific reasonability and legal stability. In other words, microcalibration of legislation to permit each North Koreans and related South Koreans better reasonability and also legally acceptable and at the same time, to give least impact on the stability of contracts.