상속회복청구권에 있어서 진정상속인의 보호방안에 관한 연구

A Study on the Protective Measures for Real Heirs in the Claim for Recovery of Inheritance(Hereditatis Petitio)

Civil Act, § 999 (Claim for Recovery of Inheritance), paragraph (1) provides that “if the right of inheritance is infringed by a person who pretends to have the right of inheritance, the person who has the right of inheritance or his agent by law may bring an action for recovery of inheritance.”, and paragraph (2) provides that “the claim for recovery of inheritance under paragraph (1) shall lapse at the expiration of three years from the date he comes to know the infringement, or ten years from the date the right of inheritance is infringed.” (Amended by Act No. 6591, Jan. 14, 2002). In this Article, I first explore the issue that the institution of the claim for recovery of inheritance does operate as that for a fake inheritor(a person who pretends to have the right of inheritance) rather than as that for real inheritor, because of the short statute of limitations provided at paragraph (2). Second, I then go on to discuss the legal nature on the claim for recovery of inheritance and case law. With respect to the legal nature, case law characterizes it as the gathering of the separate rights. According to case law, a real inheritor has only the cause of action for the claim for recovery of inheritance, but not for the separate rights, such as the claim for return of article owned(§ 213). Third, I study some possible effective methods for the prevention and the prohibition against actual evil practices that the claim for recovery of inheritance works for the fake inheritor. I argue that the claim for recovery of inheritance should work for real heirs as far as possible. Even if the Constitutional Court of Korea decided that the short term statute of limitations was unconstitutional on July 19, 2001(99Hun-Ma9), it, amended by Act No. 6591, Jan. 14, 2002, also may be unconstitutional because of the same reasons. In addition, I indicate that Supreme Court of Korea has interpreted a category of the fake inheritors narrowly or restrictively. Finally, I will argue that Civil Act, § 999, providing the claim for recovery of inheritance should be reviewed de novo and amended again, range from the requirements and the contents to the effects, in accordance with the purport of the legislation.