북한 상속법의 유언의 제한 - 유언의 내용에 대한 제한과 유언이 제한되는 것을 중심으로 -

Abstract

This paper reports a plan for the integration of the limit of wills in the South andNorth Korean inheritance Act through examining the history and features of theNorth Korean inheritance Act related to the limit of willsBoth the South and North Korean inheritance Act stipulate the legal reserve ofinheritance as the limit of wills, and the spouse, the lineal descendants, the linealascendants, and brothers and sisters are stipulated as persons with right to legalreserve of inheritance but there is a difference in the proportion between grandparentsand grandchildren. Since the North Korean inheritance Act does not specify the calculation of legalreserve of inheritance, gifts to be added to, the recovery of legal reserve ofinheritance, the sequence of return, the extinctive prescription, and the cause wherebyinheritor becomes disqualified. Therefore, the regulations of the South KoreanInheritance Act can make the inheritance relationship clearer should be extended toNorth Korea after reunification. Meanwhile, for the North Korean Inheritance Act (Article 9) stipulates that theright of inheritance can be forfeited by wills unlike the South Korean InheritanceAct, the transitional provision should be stipulated for protection of vested rights sothat it will be valid even after reunification. The inheritance act of both Koreas stipulates that the age at which one can makea will is 17-year-old. However, while North Korean inheritance act defines the sameage as the capacity of wills and the capacity of act, in South Korean case, a person,who get 17 years or older with the mental capacity, is regarded as the one who has the testamentary capacity. So there is a difference between the inheritance act of thetwo. Therefore, in this regard, the transitional measures must be taken to ensure thatwills under the North Korean inheritance law already made before reunification arevalid even after reunification. As for conditional wills, withdrawal of wills, withdrawal of wills, and withdrawalof wills in case testamentary document, etc. is destroyed, there is no problem evenafter reunification because the provisions of the inheritance act between the twoKoreas do not conflict with each other.