북한주민의 상속회복청구권 행사와 제척기간 再論

Reargument on Exercise of the Right of Claim for Recovery of Inheritance by Residents of North Korea and Exclusion Period - Critical Study on Supreme Court Decision 2014DA46648 delivered on October 19, 2016 -

The arguments in this study are summarized as follows. First, the status equivalent to a foreigner must be accepted on the residents of North Korea according to the theory on the special relationship between South and North Korea. In case a resident of North Korea has filed a lawsuit to a court of South Korea, the jurisdiction of trial is accepted on the court of South Korea if the concerned party or the case that has become subject of dispute has actual relationship with South Korea. As the nationality should not be a connecting factor according to the theory on the special relationship between South and North Korea, the governing law is the place of habitual residence law as the law of area having the closest relationship. Second, the exclusion period of the right of claim for recovery of inheritance by residents of North Korea shall be three years from ‘the time when the breach on the right of inheritance is known’ on the premise that residents of North Korea can exercise the right actually by the analogical application of Civil Act Article 166 and the former part of the second clause of Article 999, and the stipulation for the exclusion period of ‘10 years from the time when the right of inheritance is known’ shall not be applied. Third, Even though there should be provided a special stipulation for the exclusion period of the right of claim for recovery of inheritance, it can be justified as an untrue retroactive law. Therefore, the special stipulation for the exclusive period should be established as soon as possible.