민법시행 이전에 開始된 상속과 相續回復請求權의 除斥期間

The Succession before the Enforcement of the Korean Civil Law and the Statute of Limitation of the Succession Recovery Claim

&nbsp;&nbsp;A Succession Recovery Claim in the Korean Civil Law is a remedy available for a successor whose Right of Succession is infringed. Korean jurisprudence has established that the Right of Succession is "rights" on property acquired on the basis of inheritance, not “the status of a successor". Moreover, the statute of limitation of the Claim starts running “when an infringement to the Right occurs." This means that it runs from an occurrence of the Claim. Therefore, the Claim would arise from an infringing action not from the commencement of succession.<BR>&nbsp;&nbsp;In the case where the commencement of succession took place prior to the coming into force of the current Korean Civil Law but the infringement has occurred under the Law, the law at the time of infringement should apply. Notwithstanding that a transitional provision in the Civil Law provides that the law at the time of the commencement of succession shall apply to “succession cases," it must be interpreted to protect successor’s vested rights, whose legal assessment has been completed before the current Civil Law comes into force. The commencement of succession does not vest the Succession Recovery Claim in an heir(s) yet. Thus, the Supreme Court decision, which have applied the law at the commencement of succession, seems Incorrect.