相續回復請求權의 時效에 관한 慣習法의 效力 - 대법원 2003.7.24. 선고 2001다48781 전원합의체 판결 -

• 영문명: A Study of the Effect of Customary Law on the Statute of Limitation concerning Inheritance Rights Recovery Claims
• 발행기관: 한국가족법학회
• 저자명: 이화숙(Wha-sook Lee)
• 간행물 정보: 『가족법연구』가족법연구 제18권 1호, 249~272쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.03.01

영문 초록

This paper is to analyze of the Supreme Court decision on the effect of customary law of the statute of limitations concerning inheritance rights recovery claims. Supreme Court has revoked the high court decision which has rejected complainers’ claim insisting their inheritance rights recovery, on the reason that the statute of limitation has passed away, because the inheritance has started before the Korean Civil Code was enforced in 1960. According to the additional clause of Korean Civil Code, customary law is applied to the dispute of inheritance when the predecessor died before 1960, when the Korean New Civil Code has enforced for the protection of legal stability. The statute limitation was 20 years according to the customary law. Problem is that constitutional court has recognized that the article 999 of former civil code has violated Korean Constitution on the reason that the limitation is too short, and the Supreme Court has decided that the effect of the decision will be given to all the instituting lawsuit brought after the decision by Constitutional Court. Supreme Court has decided in this judgment that the high court decision, which has rejected complainers’ claim on the reason of the statute limitation had passed according to the customary law, should have judged again according to the decision of Constitutional Court on the statute limitation. Even if I agree that the effect of the unconstitutional judgment by the Constitutional Court has retroactive power, it should not be given to the disputes when customary law apply, because additional clause regulate like that and the time has passed far more than 40 years. Furthermore, the customary law is not pure Korean custom but similar to the Japanese law, because Japanese judgements had decided according to the Japanese Law when they made decision during the Japan ruled Korea. According to the Korean custom, I found at Kyungkukdaejun which was law book during Chosun Dynasty, it had no statute limitation on the inheritance recovery right. So, I offered in this paper that the unconstitutional judgement by the Constitutional Court should not be effected on the dispute of which inheritance started before 1960. Instead, Korean customary law should be applied according to the additional clause of Korean Civil Code.

목차

〔사실관계〕

〔원심판결〕

〔대법원판결〕

〔硏究〕

참고문헌

ABSTRACT