남북 주민 사이의 상속회복청구와 제척기간

Claim for Recovery of Inheritance by Residents of South ＆ North Korea and Exclusion Period

The core of the case could eventually be compressed into protecting the interests of the heirs in South Korea and those in North Korea. Under the Constitution, the logic that North Korea is part of the Republic of Korea and should be treated the same as the South Korean people could be too much of a case of ignoring the uniqueness of inter-Korean relations. Peaceful unification, the main principle of the Constitution, is based on humanitarian and brotherhood support for North Koreans. In this way, it is possible to restore the identity of the actual people. Therefore, based on this special nature of inter-Korean relations, the issue of exclusion period under the Inter-Korean Family Act should be interpreted. It is too formal to apply our Civil Act as a general law to North Koreans without considering the special nature of inter-Korean relations. In fact, since North Korea is an independent country according to international law, it is difficult to apply the civil law immediately as a mere Korean. Therefore, we should not solve this problem without worrying about international jurisdiction. As the Constitutional Court expressly stated, the right to recover inheritance is not intended to protect the unrecognized or the untrue heir, but to rescue the true one. Then, the problem of the exclusion period should also be set in terms of protecting this true heir. Article 13 of the Korean Constitution is unique in that it not only stipulates criminal nonretroactivity but explicitly prohibits the deprivation of property rights by means of retroactive legislation. Even if it is true that it is a retroactive legislation, it can be justified as a public interest where the value of protection of true heirs takes precedence over the value of quick settlement of legal relations through the exclusion period.