상속회복청구권에 있어서 진정상속인의 보호방안에 관한 연구

이현재 전남대학교 법학연구소 2008 법학논총 Vol.28 No.2

Civil Act, § 999 (Claim for Recovery of Inheritance), paragraph (1) provides that “if the right of inheritance is infringed by a person who pretends to have the right of inheritance, the person who has the right of inheritance or his agent by law may bring an action for recovery of inheritance.”, and paragraph (2) provides that “the claim for recovery of inheritance under paragraph (1) shall lapse at the expiration of three years from the date he comes to know the infringement, or ten years from the date the right of inheritance is infringed.” (Amended by Act No. 6591, Jan. 14, 2002). In this Article, I first explore the issue that the institution of the claim for recovery of inheritance does operate as that for a fake inheritor(a person who pretends to have the right of inheritance) rather than as that for real inheritor, because of the short statute of limitations provided at paragraph (2). Second, I then go on to discuss the legal nature on the claim for recovery of inheritance and case law. With respect to the legal nature, case law characterizes it as the gathering of the separate rights. According to case law, a real inheritor has only the cause of action for the claim for recovery of inheritance, but not for the separate rights, such as the claim for return of article owned(§ 213). Third, I study some possible effective methods for the prevention and the prohibition against actual evil practices that the claim for recovery of inheritance works for the fake inheritor. I argue that the claim for recovery of inheritance should work for real heirs as far as possible. Even if the Constitutional Court of Korea decided that the short term statute of limitations was unconstitutional on July 19, 2001(99Hun-Ma9), it, amended by Act No. 6591, Jan. 14, 2002, also may be unconstitutional because of the same reasons. In addition, I indicate that Supreme Court of Korea has interpreted a category of the fake inheritors narrowly or restrictively. Finally, I will argue that Civil Act, § 999, providing the claim for recovery of inheritance should be reviewed de novo and amended again, range from the requirements and the contents to the effects, in accordance with the purport of the legislation. Civil Act, § 999 (Claim for Recovery of Inheritance), paragraph (1) provides that “if the right of inheritance is infringed by a person who pretends to have the right of inheritance, the person who has the right of inheritance or his agent by law may bring an action for recovery of inheritance.”, and paragraph (2) provides that “the claim for recovery of inheritance under paragraph (1) shall lapse at the expiration of three years from the date he comes to know the infringement, or ten years from the date the right of inheritance is infringed.” (Amended by Act No. 6591, Jan. 14, 2002). In this Article, I first explore the issue that the institution of the claim for recovery of inheritance does operate as that for a fake inheritor(a person who pretends to have the right of inheritance) rather than as that for real inheritor, because of the short statute of limitations provided at paragraph (2). Second, I then go on to discuss the legal nature on the claim for recovery of inheritance and case law. With respect to the legal nature, case law characterizes it as the gathering of the separate rights. According to case law, a real inheritor has only the cause of action for the claim for recovery of inheritance, but not for the separate rights, such as the claim for return of article owned(§ 213). Third, I study some possible effective methods for the prevention and the prohibition against actual evil practices that the claim for recovery of inheritance works for the fake inheritor. I argue that the claim for recovery of inheritance should work for real heirs as far as possible. Even if the Constitutional Court of Korea decided that the short term statute of limitations was unconstitutional on July 19, 2001(99Hun-Ma9), it, amended by Act No. 6591, Jan. 14, 2002, also may be unconstitutional because of the same reasons. In addition, I indicate that Supreme Court of Korea has interpreted a category of the fake inheritors narrowly or restrictively. Finally, I will argue that Civil Act, § 999, providing the claim for recovery of inheritance should be reviewed de novo and amended again, range from the requirements and the contents to the effects, in accordance with the purport of the legislation.

점유권의 상속과 상속회복청구권

권순한 ( Soon Han Kwon ) 연세대학교 법학연구원 2011 法學硏究 Vol.21 No.3

The possessory right in Civil Law includes both a fact that one has an actual control on an object and a right that one can benefit legitimately in the position of a possessor. Civil Code Article 193 provides that the possessory right devolves on the inheritor in case of succession. The function of the provision is to guarantee the possessory right of the inheritor regardless of whether he acquires an practical control over the inheritance. As a result, the abstract possession of the inheritor is protected like a possessory right. The succession to the possessory right of the inheritor is not based on the possession system which protects actual control over the object but on the inheritance system which devolves the right, duty and legal position of an inheritee inclusively and the nature of succession is the continuance of the inheritee`s position. In the meantime, Civil Code Article 999 provides that if the right of inheritance is infringed by a person who pretends to have the right of inheritance, the person who has the right of inheritance or his agent by law may bring an action for recovery of inheritance, but the claim for recovery of inheritance shall lapse at the expiration of three years from the date he come to know the infringement, or ten years from the date the right of inheritance is infringed. According to the precedents of the Supreme Court, the inheritor`s individual claims such as a real action based on the ownership are not allowed after the exclusion period of the claim for recovery of inheritance passed. But it has difficulty explaining why a real action lapses as the exclusion period passes when an inheritor claims recovery of inheritance, because a real claim based on the ownership does not have an extinctive prescription. This problem is caused basically because the precedents regard the claim for recovery of inheritance as a claim on a comprehensive right that includes all individual rights on the inheritance. To solve this problem clearly and explain the relation with other systems compatibly, we should consider the right of inheritance - the premise of the claim for recovery of inheritance - not as a single right but as a common name for individual rights or certain positions that come from the position of an inheritor. And we should consider the claim for recovery of inheritance a right for recovery which an inheritor can assert when - among all of his rights and positions that come from the position as an inheritor - his possessory right that is succeeded automatically according to the Article 193 is infringed by a person who pretends to be a true inheritor. Consequently, the claim for recovery of inheritance has the same nature of the claim for protection of possessory right and is the special provision of possessory title, and individual claims such as a real action based on the ownership should be allowed even if the exclusion period of the claim for recovery of inheritance passed.

상속회복청구권의 법적 성질

김용호 단국대학교 법학연구소 2022 법학논총 Vol.46 No.3

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.

상속회복청구권의 제척기간에 관한 적용법조

박근웅(Keun Woong Park) 한국가족법학회 2010 가족법연구 Vol.24 No.2

Recently, Inter-temporal Civil Law has come to a major issue in concerning the Succession Recovery Claim. The Korean Civil Law, which contains the Succession Recovery Claim provision(§999), was legislated in 1958. Since then, regarding the Succession Recovery Claim the Korean Civil Law has been revised in 1990 and in 2002. Especially, the 2002 amendment was caused by the ruling of the Constitutional Court in the year 2001. Thus there rise the problem, which Law should be applied in specific cases? To resolve the issue, we must interpret the supplementary provisions of Korean Civil Law and review the effect of unconstitutional ruling of the Constitutional Court. Recently, the Court have made decisions on some Cases related to the Law of Application. But there are doubts whether the judgements are proper or not. After the ruling of the Constitutional Court in 2001, the Court have ruled as follows on the cases in relation with the Law of Application. First, if someone has inherited before 1960, according to the ruling of the Court, Article 25 of the supplementary provisions of 1958 Civil Law apply. But I assert that Article 2 of the supplementary provisions of 1958 Civil Law should apply. The intent of Article 25 is to protect the vested rights of a legal heir. But regarding the Succession Recovery Claim, a legal heir has the vested rights when the right of inheritance is infringed. Therefore “inheritance commenced” is not a proper standard. In conclusion, also with regard to inheritance commenced before the date of enforcement of 1958 Law, the provisions of the new 1958 Civil Law shall apply. Second, if someone has claimed for the Recovery of Inheritance after the date of enforcement of 2002 Civil Law, according to the ruling of Court, 2002 Law apply, and the Claim for Recovery of Inheritance shall lapse at the expiration of ten years from the date of the infringement of the Right of Inheritance. But I think that such decision of the Court infringe the vested rights of a legal heir. Because of the unconstitutional ruling of the constitutional Court, the article of 10 years Limitation of 1958 Law and 1990 Law lost validity, and such effect will be applied retrospectively(then a rightful heir had no time limit in exercising his Rights). Therefore, if the 2002 amended Law applies retroactively without considering the starting point of reckoning, that would be a real Retroactivity. So, I suggest in this paper that a rightful heir, who would be affected by the unconstitutional ruling, should exercise his rights within 10 years from the date of enforcement of the 2002 Law. In addition, the Court’s ruling mentioned above has another problem. According to the ruling, the fact that 10 years have passed since the inheritance, is not under consideration. But this is not reasonable in view of the legislators’ intention. So, I assert that “Validity caused by the previous provisions”(Article 2 of the supplementary provisions of 2002 Law) include Legal Stability based on 1958 and 1990 Civil Law. However, if the other party of the Claim for Recovery is not a third party in good faith, his protest would be a violation of §2 of the Civil Law. In Conclusion, I proposed in this paper as follows. Firstly, the Case that inheritance commenced before 19, July, 1991.: The Effect of unconstitutional ruling of the Constitutional Court doesn’t affect in this case. And §999 of 1958 and 1990 Civil Law apply. However, if the other party of the Claim for Recovery is not a third party in good faith, his protest would be rejected due to the violation of §2. Secondly, the Case that inheritance commenced after 19, July, 1991.: The Effect of unconstitutional ruling of the Constitutional Court affect in this case and §999 of 2002 Civil Law will be applied retrospectively.

상속회복청구권 행사기간 경과의 효과

박근웅(Park KeunWoong) 한국가족법학회 2014 가족법연구 Vol.28 No.3

The Korean Civil Act(KCA) article 999 defines about the Claim for Recovery of Inheritance. According to KCA art. 999 clause 2, the Claim for Recovery of Inheritance shall lapse at the expiration of three years from the date he comes to know the infringement, or ten years from the date the right of inheritance is infringed. However, it is not clear what kind of Legal Effect occurs after Expiration of the Period. The Korean Supreme Court(KSC) ruled that a real Heir should lose his own Heirship and on the contrary to that person who pretends to have the right of inheritance should acquire Heirship retroactively if the Claim for Recovery of Inheritance becomes extinct by Expiration of the Period. But such Ruling is an improper conclusion as follows. First of all, the Exercising Period of the Succession Recovery Claim is not Extinctive Prescription, but Exclusion Period. The Retroactive Effect does not correspond with a Period of Exclusion. Presumably, KSC took account of inheritance's distinct characteristics. However, the special treatment by Inheritance is for a real Heir, not for a false Heir. There is not a special Necessity to admit a Retroactive Effect. It is also undesirable to correlate a Heirship with the Effect of Expiration of the Period. A real Heir doesn't lose Heirship itself, even if the Claim for Recovery of Inheritance shall lapse at the expiration of Exercising Period. After Expiration of the Period, A real Heir still has right of succession. To conclude, a real Heir loses the ownership of Property infringed upon expiration of a Period at KCL art. 999 (2). And on the contrary, a person who pretends to have the right of inheritance becomes the Owner of that Property with a future. According to KCA 999 (2), it can be comprehended that only the (Right of) Claim for Recovery of Inheritance may lapse and the Ownership of Property remains to a real Heir. But when interpreted in this way, the Ownership becomes empty Right. The institutional Purpose of KCL art. 999 (2), relationship of inheritance must be decided as soon as possible, should also be considered. Meanwhile, the Question, whether a false Heir claims the Effect of the Exporation of the Period aggressively, is another matter. In these cases, the Fact which the Right lapses by Exclusion Period should be used as a defensive measures only. Such a conclusion is based on the Principle of good faith.

상속회복청구권의 행사기간에 대한 연구

김성태(Kim, Sung Tae) 서강대학교 법학연구소 2012 서강법률논총 Vol.1 No.1

There are only Art. 999 clause 1 and 2 for provisions in the Civil Law on the right of claim for inheritance recovery, but considerable amounts of researches and relevant precedents have been presented on the right for the one article. Although this study may be another one to mention the subject, there are not much research on true purpose that the system intented to protect. The author of this study investigated the history, institutional aims, and process of legislation of the system, and reviewed the attitude of domestic theories and precedents of interpreting exercising period of the right of claim for inheritance recovery as statute of limitations, for identifying the true purpose of the right. In every instance, problems occurring on the right of claim for inheritance recovery begin to decide whether protection of the right for inheritance of real inheritor or rapid safety of transaction relation on inheritance would be emphasized. This is the important starting point in interpreting the legal nature, exercising period, and range of pretended inheritor in the right of claim for inheritance recovery. Given the purpose presented in history of the first legislation on the right of claim for inheritance recovery, the system of claim for inheritance recovery should be developed centering on protection of real inheritor. Recently the Constitutional Court decided that the concrete exercising period of the right of claim for inheritance recovery should be at the discretion of legislator (the Constitutional Court, September 24, 2009, 2008 Constitutional-Ba 2 Decision; the Constitutional Court, July 31, 2008, 2006 Constitutional-Ba110 Decision). Therefore, revision of Art. 999 clause 2 would be the only method to protect real inheritor by expanding the exercising period of the right of claim for inheritance recovery. In order to resolve conflicts on inheritance by the system of claim for inheritance recovery, protection of real rightful person should be prior.

민법 제1014조의 상속분가액지급청구권 再論

정구태(Chung, Ku-tae),신영호(Shin, Young-ho) 한국가족법학회 2013 가족법연구 Vol.27 No.3

‘A claim for payment of the amount equivalent to one’s share of inheritance (hereinafter referred to as ‘payment claim’)’ is to divide inheritance property equivalently among legitimate coheirs qualified for inheritance. It is in distinction from ‘a claim for recovery of inheritance (hereinafter referred to as ‘recovery claim’)’ in that the opposite party of the right is not the person who pretends to have the right of inheritance as a third party but is a legitimate coheir, that the right is not redeemed through civil proceedings but through family litigation proceedings, and that the petitioner’s right does not need to be restricted to protect a third party’s legal status or to secure the safety of transaction. In the Constitutional Court, however, there was a majority opinion that a payment claim was a sort of recovery claims and the exclusion period, pertaining to the recovery claim, had to be applied to the exercise of the payment claim. I don’t agree with this opinion. Even if the exclusion period, pertaining to the recovery claim, should be applied to the exercise of the payment claim, it requires that the period should be reckoned from the time of recognition or final ruling.

대상재산(代償財産)에 대한 상속회복청구

박근웅,Park. Keun-Woong 한국비교사법학회 2014 比較私法 Vol.21 No.4

상속권이 참칭상속인으로 인하여 침해된 때에는 진정상속인은 상속회복청구권을 행사하여 침해된 상속재산의 회복을 구할 수 있다. 그러나 참칭상속인이 상속재산 그 자체를 반환할 수 없는 경우 등에 있어서 상속재산 그 자체가 아닌 상속재산의 대상물(代償物)을 반환의 대상으로 삼을 수 있는가 하는 점은 우리 민법상 분명하지 않다. 이 문제와 관련하여 로마법 이래 독일이나 스위스와 같은 서구 여러 나라들은 명문규정 또는 해석론을 통해 상속회복청구권의 대상(對象)으로서 대상재산(代償財産)의 관념을 인정하여 오고 있다. 특히 스위스에서는 명문의 규정은 없으나 상속재산이 특별재산을 구성하는 것으로 이해하여 해석을 통해 이를 인정하고 있다. 상속재산은 특별재산에 해당하며, 특별재산에는 물적 대위의 법리가 적용된다고 설명하고 있는 것이다. 일본에서도 몇몇 학자들은 이와 유사한 취지의 주장을 하고 있다. 최근 우리나라 하급심판결에서도 상속재산의 대상물을 상속회복청구의 대상으로 인정할 수 있는지가 다투어진 바가 있다(2012가합503883,509188,506103 판결; 2013나2003420 판결). 이 사건에서 법원은 독일민법과 같이 명문의 규정을 두고 있지 않은 이상 통상적인 재산법의 법리에 기초하여서는 대상재산에 대한 상속회복청구를 인정할 수 없다고 결론 내렸다. 그러나 상속회복청구 관계당사자의 이익을 형량하여 보았을 때, 정책적인 측면에서 대상재산에 대한 상속회복청구를 인정하는 것이 타당하다고 본다. 진정상속인을 두텁게 보호해야 할 이익이 존재하기 때문이다. 다만 경우에 따라서는 거래안전을 해할 우려가 있음이 사실이고, 입법론적으로 선의의 제3자 보호규정을 통하여 이러한 불합리를 시정할 필요가 있다고 할 것이다. 한편 대상재산에 대한 상속회복청구를 인정함에 있어서는 이론적으로 상속재산을 특별재산으로 인정하고 이에 대하여 물적 대위의 법리를 적용하고 있는 독일이나 스위스에서의 논의들이 참고가 될 수 있을 것으로 생각한다. According to Korean Civil Act Art. 999 clause 1, if the Right of Inheritance is infringed by a person who pretends to have the Right of Inheritance, the Person who has the Right of Inheritance may bring an action for Recovery of Inheritance. However, it is not clear whether a Claim for Recapture of a Substitute is allowed or not in the case when an unjustified inheritor is not able to return the original inherited property. Many countries, such as Germany and Switzerland, recognize the Notion of Substitute Property at the Claim for Recovery of Inheritance by Substantive Enactment or Interpreting Methodology. Especially, in Switzerland, the Intellection -Inherited Property is a kind of Separate Patrimony - has been the commonly accepted view. And the Idea, Legal Principles of Real Subrogation apply to Separate Patrimony, is also widely accepted. Similarly in Japan, Several scholars gave forth the same view. Recently in Korea, Lower Courts held whether a Claim for Inheritance Recovery on the newly acquired Substitute Property by Inherited Property was possible or not(2012gahab503883,509188,506103; 2013na2003420). The Courts concluded that such Claims couldn’t be admitted because Korea Civil Act didn’t have Substantive Enactment to recognize the Recovery on the Substitute Property like German Civil Act. But in the political aspects, it would be preferable to admit the Recovery Claim on the Substitute Property, because the profit by heritage should be vested to the Real Heir according to the Prospect of Justice. Theoretically, it is possible to view as follows. Inherited Property - the Subject of the Claim for Inheritance Recovery – is a kind of Separate Patrimony. And the Principle of Real Subrogation applies to Inherited Property which is Separate Patrimony.

중복 보존등기된 상속부동산에 대한 상속회복청구권 소멸의 반사효과 - 대법원 2011. 7. 14. 선고, 2010다107064 판결 -

권재문 법조협회 2013 法曹 Vol.62 No.2

종래의 판례에 의하면 상속회복청구권이 행사기간 만료로 인하여 소멸하면 상속회복청구권자는 상속재산에 대한 소유권을 잃어버리고 참칭상속인이 상속개시기로 소급하여 상속받은 것으로 된다. 이러한 ‘반사효과’를 인정하는 것 자체에 대해서는 비판론이 제기되기도 하였지만 그 전제라고 할 수 있는 반사효과로 인한 소유권 귀속의 본질이 무엇인지에 대해서는 별다른 의문이 제기되지 않았다. 대상판결에서는 종래에 상속회복청구의 소를 제기하였다가 패소하였던 측에서 같은 상속재산에 대해 다시 소를 제기하여 피고들 명의의 등기가 중복보존등기에 터잡은 것이기 때문에 절차법설에 따라 말소되어야 한다고 주장하고 있다. 대상판결은 이러한 소는 전소인 상속회복청구의 소와 청구원인을 달리하는 것이어서 기판력에 저촉되지 않으며, 상속관계와 무관한 사유들 들고 있기 때문에 상속회복청구권의 행사기간에 걸리지도 않는다는 이유로 원고의 청구를 인용하였다. 그러나 대상판결 자체만 놓고 보면 큰 문제가 없어 보이지만 제반 사정을 함께 고려하면 대상판결의 결론에 대해서는 의문이 있다. 이 사건 토지에 대해서는 1976년부터 같은 쟁점 즉 누가 진정상속인인가, 그리고 상속회복청구권 소멸의 반사효과는 무엇인가를 둘러싸고 일련의 사건들이 진행되어 왔다. 그 배경을 보면 원고는 피상속인의 차남이며 피고는 피상속인의 장손자인데 피상속인의 장남이 사망한 후 조부인 피상속인이 피고의 출생신고를 한 것이 유효인지가 문제되었다. 이러한 사실관계에 대해 일련의 관련사건 판결들에 나타난 사실관계와 쟁점들을 종합하여 살펴보면 다음과 같은 결론을 도출할 수 있다. 첫째로, 진정상속인은 피고이다. 왜냐하면 상속개시기인 1954년 당시에는 구관습이 적용되었기 때문에 호주인 피상속인이 자신의 장남이 한 불요식 유언인지의 집행으로서 피고를 출생신고한 것으로 해석할 여지가 있기 때문이다. 둘째로 설령 원고가 진정상속인이라 하더라도 이미 상속회복청구권이 소멸하였고 그 반사효과로서 소유권이 소멸하였다. 따라서 중복등기임을 이유로 피고 명의의 등기 말소를 구할 이익이 인정될 수 없다. 대상판결의 원심은 상속회복청구권 소멸의 반사효과는 참칭상속인이 등기명의인인 경우에만 인정되는 것이라고 하였으나 상속회복청구권의 본질이 물권적 청구권이라고 본다면 원심의 위와 같은 판단에 대해서는 수긍하기 어렵다. 셋째로 피고의 상속회복청구권도 만기로 소멸하였다는 확정판결이 있지만, 구관습상의 절대기간은 위헌이어서 소급적으로 관습법으로서의 효력이 소멸하였고 피고가 상대기간은 준수하였음을 감안할 때, 피고의 상속회복청구권 소멸을 인정한 확정판결의 기판력은 더 이상 미치지 않는다고 볼 수 있다. In this case, the main issue looks like validity of duplicated registration. But the real decisive point is who is the owner of the real estate. To solve this problem there are two preliminary questions, that is, validity of acknowledgement of paternity by will and the effect of the exclusion period of the claim for recovery of inheritance. As the inheritee died before the enactment of the Korean Civil Code in 1960, the customary law ruled the relation about inheritance in this case. According to the customary law, one could acknowledge his paternity by will and a will could be made in any shape because it was not an formal act. Moreover the head of a family could execute the will made by his family members. Considering these custom, it is not the plaintiff who is the second son of the inheritee but the defendant who is the only son of the first son of the inheritee that seems to have had the right of inheritance. However, it was included in the contents of the customary law that if the right of inheritance is infringed by a person who pretends to have the right of inheritance, the claim for recovery of inheritance shall lapse at the expiration of 6 years from the date he come to know the infringement, or 20 years from the date when the inheritee died. So it should be considered together that whether the period had lapsed to make sure who is the real inheritor. Regarding to this point, it is worth remarking that the Korean Supreme Court overruled precedents about the customary law of the prescription on the recovery of the estate. The new precedent declared that because the ‘20 years rule’ was contrary to the spirit of the Constitution it cannot be deemed as a binding customary law. This new ruling should be given retrospective effect, though there can be some other opinions. Considering these legal conditions, the plaintiff seems to have no right to demand registraion of the defendant be filled out even though it is on the duplicated registration.

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

성위석 민사법의 이론과 실무학회 2017 民事法理論과 實務 Vol.21 No.1

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. 민법 제999조는 상속회복청구권에 대하여 규정하면서, 단기의 제척기간을 규정하고 있다. 이에 대하여, 그에 대한 특례규정인 ‘남북 주민 사이의 가족관계와 상속 등에 관한 특례법’ 제11조 제1항은 상속회복청구권의 제척기간에 대하여 아무런 취지도 규정하고 있지 않다. 현행법의 이러한 상황에서, 최근 북한 주민 상속인이 남한 주민 상속인을 상대로 하여 상속회복청구소송을 제기하였다. 대상 사안의 핵심적 쟁점은 대상 사안에 대하여 민법 제999조 제2항이 적용된다고 보아야 할 것인지 여부에 있다. 이 쟁점에 대하여, 학설⋅판례 상으로 민법 제999조 제2항의 적용을 긍정하는 견해⋅유사 취지의 규정이 유추적용되어야 한다는 견해⋅민법 제999조 제2항의 적용을 부정하는 견해가 중요 견해로 부각되어 왔다. 대상 판결의 다수의견과 항소심은 첫 번째 견해의 입장에서 판단하여 원고의 주장을 받아들이지 않았고, 대상 판결의 반대의견은 두 번째 견해의 입장에서 판단하였다. 제1심은 세 번째 견해의 입장에서 판단하여 원고의 주장을 받아들였다. 결과적으로 원고 즉 북한 주민 상속인의 주장은 받아들여지지 않았다. 필자는 위 세 견해 가운데 세 번째 견해가 타당하다고 보았으며, 대상 판결과 항소심의 판단 보다 오히려 제1심의 판단이 법리적으로 타당하다고 보았다. 다음으로 필자는 관련 현행법을 입법적으로 보완하는 방향에 대하여 두 가지 방안 즉 상속회복청구권제도를 폐지하면서 특례법을 개정⋅보완하는 방안과 상속회복청구권의 존치를 전제로 하면서 특례법을 개정⋅보완하는 방안을 제시하고 있다. 법리적으로 볼 때 첫 번째 방안이 이상적이지만, 이를 추진하는 데에는 많은 논의와 시간이 필요할 것이라고 지적하고 있다. 두 번째 방안을 제시하는 데 있어서는 상속회복청구권의 제척기간을 연장하는 조항을 신설하는 것이 타당하다고 보고 있다. 이어서 필자는 후속 연구과제에 대하여 약간의 견해를 피력하고 있다. 필자는 대상 사안에 있어서는 남북 분단의 특수성과 평화통일을 지향하는 헌법정신 등에 비추어, 북한 주민 상속인의 이익 보호에 특히 주목해야 하며 아울러 남한 주민의 기득권 보호 및 거래 안전을 고려해야 할 것이라고 누차 강조하고 있다.