The Korean peninsula has been divided for more than half a century, yet the South-North Korean relations are still in a politically strained situation.
On December 17, 2011, North Korea's leader Kim Jong-il has died but North Korea's new leader Kim ...
The Korean peninsula has been divided for more than half a century, yet the South-North Korean relations are still in a politically strained situation.
On December 17, 2011, North Korea's leader Kim Jong-il has died but North Korea's new leader Kim Jong-un may not fully take over absolute power, which increases fears among North Korean observers over a behind-the-scenes power struggle in North Korea or nuclear instability upon the elder Kim's death.
Since the division of Korea after World War II and the end of the Korean War, many people have defected from North Korea. The number of North Korean defectors in South Korea has exceeded 20,000 in November, 2010 and is continuously increasing. In addition, unstable and rapid changes in North Korean system will accelerate defection of North Koreans.
Therefore, issues concerning the family relations and inheritance between South and North Koreans are emerging since the Korean war separated families for a long time.
Legal issues regarding family relations and inheritance between South and North Korea residents has been rising as North Koreans bring the cases to the court of South Korea.
In particular, North Koreans filed law suits, such as proceeding to adjudicate parentage and claim for acknowledgment of paternity, recovery of inheritance and cancellation of the decedent's second marriage for bigamy against their South Korean family members who were separated during the Korean war in February 2009 and this case has received much media attention.
In responding to these legal problems, Ministry of Justice proposed to prepare a law dealing with these special cases. Finally, an act on the special cases made by Ministry of Justice (「act on the special cases concerning family relations and inheritance between the South and North Koreans」) was passed in the Assembly plenary session in December 29, 2011. Thus, this study attempted to examine the meanings and need for this new act and details about it.
First, in the functional aspect, as personal and material exchanges are increased between South and North Korea, the legal status of North Koreans, which was mainly discussed in the theoretical perspective, needs to be approached from a new perspective. Therefore, this study attempted to discuss the legal status of North Koreans in the analytical framework of 'Constitutional theory on the special relationship between South and North Korea'.
Second, this study reviewed cases that North Koreans (or 'who were formally North Koreans') filed lawsuits against South Koreans to the Court of the South Korea. Based on results of the analysis, except divorce suits of North Korean defectors that have been settled by legislation, the possible legal issues of family and inheritance between the South and North Koreans were investigated and evaluated. Despite the divided situation of the Korean peninsula, interpretation of current law does not support the equal treatment of South and North Koreans. The major issues regarding family relations are related to the bigamy due to remarriage of the separated couple in marital relationship and inheritance of the divided family.
Third, this study conducted content analysis and discussed implications of the「act on the special cases concerning family relations and inheritance between the South and North Koreans」. According to the 「act on the special cases」, a suit for nullity of second marriage in the case of bigamy of separated families are limited and the paternity suit is extended. In addition, the 「act on the special cases」 restricts North Koreans taking their property, which was earned by inheritance or bequest out of South Korea. The most controversial issue regarding whether to allow an exceptional clause on limitation of claiming recovery of inheritance of North Koreans was excluded. Although South and North Korea is potentially building a special relationship as heading toward the process of unification, the most important factor in the enactment of 「act on the special cases」 is the equal treatment of South and North Koreans should be protected within the domain of family law. Therefore, this study attempted to analyze such perspective on the 「act on the special cases」.
The lawsuit filed by North Koreans gives us many problems in the era of division and separation. Therefore, if this 「act on the special cases」 is applied to litigation matters and accumulates related cases, the predictability for the solution of both South and North Koreans' lawsuit cases will increase. 「Act on the special cases」may be revised by academic and public opinion of the people if it become a public issue.
「Act on the special cases concerning family relations and inheritance between the South and North Koreans」is significant because this act is the first law that will reasonably resolve the dispute that may occur between South and North Koreas. This act provides a clauses to define South and North Koreans respectively. It also promotes the stability of the legal relationship by regulating family relations, inheritance and bequest between the South and North Koreans and effective management of the property owned by North Koreans. This act may solve related problems rationally while it contributes to the reconciliation and cooperation of South and North Korea, and ultimately to the unification.
In order to activate exchanges and cooperation in the private sector, legal and systematical support are needed through reliable and steady manners.
Although the initiation of the 「Act on the special cases」was carried out by the North Koreans' lawsuit to deal with civil issues between South and North Koreans, it will be a starting point for drawing agreements to handle civil issues between South and North Korea.