상속회복청구권의 시효에 관한 일제시대 관습법의 정립과 왜곡

Abstract

According to the customary law before the civil law was legislated, the prescription on the recovery of the estate used to be terminated if it has been20 years since the inheritance started. The Korean Supreme court decided that it is a custom to terminate the prescription on the recovery of the estate 6 years after they learned the fact of the violated right of inheritance and 20 years since inheritance had started. The author has clarified that the precedent above about the prescription on the recovery of the estate was based on the distorted regulation and customary law from Japanese Imperialism. However, recently, the Korean Supreme Court has decided that among the customary, that the prescription on the recovery of the estate used to be terminated 20 years since the inheritance started does go along with the concept of the law and is not reasonable to be recognized as customary law. This study has examined how the Japanese customary law about the prescription on the recovery of the estate has been established. As a result, we have learned that it has been established according to Japanese civil law to assimilate with Japan. In other words, such custom does not exist in Korea. Therefore, the customary law above should be invalid according to Ordinance No. 11(1945. 10. 9. by Headquarters United States Army Forces in Korea) §2 which says that all the law that discriminates race, nationality, faith, and political ideology since the liberation is not justified.