相續回復請求權의 消滅時效에 관한 舊慣習의 違憲 與否 및 判例의 遡及效 -대법원 2003. 7. 24. 선고 2001다48781 전원합의체 판결(公 2003하, 1785)-

• 영문명: The Unconstitutionality of Custom of the prescription on the recovery of the estate(hereditatis petitio) and the retroactivity of the precedent
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 윤진수(Jinsu Yune)
• 간행물 정보: 『비교사법』비교사법 제11권 2호, 275~332쪽, 전체 58쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.06.01

영문 초록

On July 24, 2003, the Korean Supreme Court overruled precedents about the old custom of the prescription on the recovery of the estate(hereditatis petitio). The old precedents have recognized that before the enactment of the Korean Civil Code in 1960, there existed a customary prescription law, the intent of which is that the right of the recovery of the estate had expired in 20 years after the death of the predecessor. But the new precedent declared that because the custom was contrary to the spirit of the Constitution, it cannot be deemed as a binding customary law. It seems that this ruling has got some influence from the decision of the Korean Constitutional Court on July 19, 2001. In this decision, the Constitutional Court has declared that the Article 999 para. 2 of the Civil Code as unconstitutional, which had provided that the right of the recovery of the estate would expire in 10 years after the death of the predecessor. The author asserts first that there was no such custom. In fact, this "custom" was invented by the Japanese court during the era of Japanese reign of Korea. Secondly, if it can be assumed that such a custom had existed, it is unconstitutional because it would give the estate to the false heir in bad faith, sacrificing the true heir. There is a additional debate point about the retroactivity of the precedent. One of the justice who has concurred the minority opinion of this decision asserted that this new ruling shoud be given only prospective effect. But the author believes that this decision was right in giving retrospective effect in this case, though in other cases it would be necessary to give the new precedent prospective effect only.

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