민법시행 이전에 開始된 상속과 相續回復請求權의 除斥期間

• 영문명: The Succession before the Enforcement of the Korean Civil Law and the Statute of Limitation of the Succession Recovery Claim
• 발행기관: 한국가족법학회
• 저자명: 박세민(Sea Min PARK)
• 간행물 정보: 『가족법연구』家族法硏究 第21卷 3號, 311~348쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.11.30

영문 초록

  A Succession Recovery Claim in the Korean Civil Law is a remedy available for a successor whose Right of Succession is infringed. Korean jurisprudence has established that the Right of Succession is "rights" on property acquired on the basis of inheritance, not “the status of a successor". Moreover, the statute of limitation of the Claim starts running “when an infringement to the Right occurs." This means that it runs from an occurrence of the Claim. Therefore, the Claim would arise from an infringing action not from the commencement of succession.
  In the case where the commencement of succession took place prior to the coming into force of the current Korean Civil Law but the infringement has occurred under the Law, the law at the time of infringement should apply. Notwithstanding that a transitional provision in the Civil Law provides that the law at the time of the commencement of succession shall apply to “succession cases," it must be interpreted to protect successor’s vested rights, whose legal assessment has been completed before the current Civil Law comes into force. The commencement of succession does not vest the Succession Recovery Claim in an heir(s) yet. Thus, the Supreme Court decision, which have applied the law at the commencement of succession, seems Incorrect.

목차

Ⅰ. 서론
Ⅱ. 판결내용
Ⅲ. 판례와 학설
Ⅳ. 상속회복청구권의 본질
Ⅴ. 민법부칙의 해석론과 제2판결
Ⅵ. 결론
《참고문헌》
영문초록

키워드

상속회복청구권 상속권 제척기간 경과규정 Succession Recovery Claim Right of Succession statute of limitation transitional provision