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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.
KCI
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