高氏 門中의 訟事를 통해 본 傳統 相續法의 變遷

Abstract

This paper deals with the 2 precedents of the Chosun Godeungbeobwon(Chosun High Court), the highest court in the colonial Korea, in the 1930s arising from the same dispute within the family. The background of the dispute was as following: in 1907, Ko Kwangsun, the 12th Jongson(The eldest son of the family, representing the family) of Ko Inhu, who had died in the battle against the invading Japan in 1592, also died in the battle against the Japan. According to the traditional inheritance law of Korea, the eldest son of Ko Kwangsun, Ko Jaehwan, should become the heir of the ancestor worship ritual for Ko Inhu. But other family members had prevented him from becoming the heir, because Jaehwan, was deaf and dumb. After the death of Jaehwan, his son Ko Hyunseong tried to regain the heirship of the ancestor worship ritual for Ko Inhu twice. In the first case, Hyunseong raised the suit to get the confirmation that he was the proper heir of the ancestor worship ritual. But the Chosun Godeungbeobwon held that Hyunseong had no interest to raise such a suit on the reason that the dispute over the proper heir of the ancestor worship ritual could not be deemed as a legal dispute, in effect overruling the former precedents. After this, Hyunseong raised another suit to recover the ancestoral tablet of Ko Inhu, asserting that this belonged to him, the proper heir. But Chosun Godeungbeobwon rejected his claim on the reason that his claim was barred by the statute of limitation. But these rulings were not the exact application of the traditional Korean inheritance law. Rather, these should be understood as substituting the Japanese inheritance law for the traditional Korean inheritance law. This paper explains the outline of the traditional Korean inheritance law and analyses the process of the transition of the traditional Korean inheritance law.