북한 주민의 상속회복청구권과 제척기간 - 대법원 2016. 10. 19. 선고 2014다46648 전원합의체 판결에 대한 검토를 중심으로 -

Abstract

Article 999 of Civil Act stipulates claims for Recovery of inheritance including a short exclusion period. With respect to this, Article 11(1) of ‘Act on the Special Cases concerning Family Relationships, Inheritance, etc. between Residents in South and North Korea’, the special regulation of the Act does not stipulate any legislative meaning of exclusion period of claims for recovery of inheritance. Recently North Korean heir issued a lawsuit for inheritance recovery against South Korean heir in this situation of the existing law. The core issue of the case is whether Article 999(2) in Act can be applied to this problem. With respect to this issue, the three opinions have been emerged as a controversy: Firstly, the positive opinion that this case is applied to 999(2) in the Act according to the doctrines and the judicial precedents, secondly, the opinion that it is applied analogically to interpretation of similar regulation, lastly, the negative opinion that it is not applied to. The plaintiff’s assertion was rejected in the appellate judgment and a majority of Supreme Court judgement according to the first opinion, but the dissenting opinions of Supreme Court judged the case according to the second. The first trial accepted plaintiff’s assertion according to the last opinion. Consequently, the insistence of North Korean heir was not accepted. The writer thinks that the last among the above three opinions is reasonable and the judgement of the first trial is more reasonable than that of appellate court and of Supreme Court in the view point of legal principles. The writer suggests two ways to complement the relevant existing law by legislative change. One is the way to abolish a claim for the inheritance recovery and to amend the special regulation, and the other is the way to amend the special regulation with maintaining a claim for inheritance recovery. The first is ideal in the point of legal principles, but it is hard to proceed the way as it needs much time and discussions. The second is suitable that the exclusion period of the right will be prolonged. Subsequently, the writer expresses an opinion on the follow-up research task. The writer emphasizes that protection of North Korean heir’s profit is worthy of note in the light of specificity of the division of Korea into north and south and the spirit of constitution toward peaceful unification, and that it is important to consider the protection of vested rights and transaction safety of the resident in South Korea.