상속회복청구권의 법적 성질

Abstract

This paper discussed the legal nature of the right to claim restoration of inheritance, focusing on Article 999 of the Civil Code, and reached the following conclusions. First, the theory of collective rights, which understands the claim for restoration of inheritance as a collection of individual claims arising from the individual properties that make up the inherited property, rather than a single independent claim, is appropriate. The Supreme Court initially followed the doctrine of independent rights, but changed to the doctrine of collective rights in 1981 with the unanimous decision, which continues to this day. According to the theory of independent rights, which theorizes the right to claim restoration of inheritance as an individual claim and an independent right, even after the expulsion period of Article 999, paragraph 2 of the Civil Code has passed, an individual such as a claim for return of possessions The above exclusion period, which was set for the speedy stabilization of the inheritance relationship, becomes meaningless because the right to claim can be exercised. Second, according to the theory of collective rights, conflict between claims for restoration of inheritance and individual claims is denied, so individual claims for inherited property are extinguished after the expiration of the period for laiming for restoration of inheritance. As a result, while property claims arising from ownership rights are not extinguished by prescription, property rights held by heirs are extinguished after the expiration of the exemption period of Article 999, paragraph 2 of the Civil Code. This is a result that shakes the system, but it is an unavoidable result because the Korean Civil Code started with the legislative purpose of quickly establishing the legal relationship regarding inheritance and stabilizing the business relationship at an early stage. Third, according to the theory of collective rights, conflict between claims for restoration of inheritance and individual claims is denied. There is also criticism that it will be extinguished and that it will be an unfair result of overprotecting the matching heir, but this is also the second unavoidable result. Fourth, according to the theory of collective rights, there are criticisms such as the second and third, but this is due to the establishment of a special provision (special provision for the exercise of property rights of heirs) like Article 2029 of the German Civil Code. We think that it is desirable to settle legislatively by doing. Fifth, the issue of whether a sedated heir can exercise his right to claim restoration of inheritance against a third party who has inherited inherited property from matching it would be good toinheritance can be resolved by establishing a new prestige provision such as Article 2030 of the German Civil Code.