북한주민의 상속권 ―특별법 제정 논의를 중심으로―

Abstract

North Korean’s exertion of the inheritance rights in Sough Korea should be considered in the light of the special situation of South Korea and North Korea as divided countries. It may be possible to limit North Koreans’ interitance in South Korea. However, the total denial of their rights should not be permitted because it may infringe the property right guaranteed by the Constitution. The legal portion of legacy should be based on the principle of the equal division of inheritance, with consideration of the contribution part to achieve equity for the parties concerned. Also, certain countermeasures may be required to prevent a legal disorder in the current inheritance laws by the exertion of North Korean inheritance rights. For instance, limiting the inheritance value could be one. However, North Koreans’ acquisition of property rights in South Korea should not be permitted. Considering the fact that South Koreans are not allowed to exert the inheritance in North Korea and the gap of economic power between the South and the North, the transfer of North Koreans' inheritance value from South Korea to North Korea should be limited not to infringe the North Koreans’ property rights. Parts of the current laws impede North Korean’s exertion of the inheritance rights. Thus, it is necessary to reform those laws to make it possible to cancel the absence sentence for those who is alive in North Korea and to enable them to exert their inheritance rights. Also the limitation of a claim for recapture of estate should be adjusted. It should be reminded that an enactment of the special law can be effective only when a judicial assistance between South and North Korea is made.