[Major Decision]Whether North Koreans can exercise their right to recover inheritance and whether the exclusion period applies
- Supreme Court 2016. 10. 19. 선고 2014다46648 판결(전원합체)

Law Firm (Limited) Hanbyul  Yang Seung Won Attorney

1. Overview of the case

A (born in 1933) was taken to North Korea during the Korean War and gave birth to a daughter, 甲 (born in 1969). In 2004, A was reunited with her sister in China, but was detected by North Korean authorities and died in December 2006 due to the effects of torture. A's father B, who lived in South Korea, died in 1961 and mother C died in 1990, and the forest land in question was registered in 1978 in the name of C and her surviving children in South Korea. After escaping from North Korea in 2007 and entering South Korea in 2009, 甲 requested the Seoul Family Court to cancel A's missing person's declaration (1977), and the court decided to cancel the missing person's declaration in 2013. In 2011, 甲 filed a claim for recovery of inheritance against B and C's children, 乙 and 丙.

2. Summary of the trial court's ruling

The trial court held that Article 11 of the Special Act on Family Relations and Inheritance between North and South Koreans (North-South Family Special Act) is titled 'Special Exception for Inheritance Recovery Claims', which stipulates special contents that override the application of Article 999 of the Civil Code (Right to Inheritance Recovery Claims), Paragraph 1 stipulates that North Koreans can file an inheritance recovery claim in accordance with Article 999(1) of the Civil Code, which excludes the '10' year period for exercising the right stipulated in Article 999(2) of the Civil Code, so it was determined that North Koreans' inheritance recovery claims are not subject to the 10-year limit stipulated in Article 999(2) of the Civil Code.

3. Summary of the original judgment and the targeted judgment

The original judgment dismissed the plaintiff's claim as invalid because Article 11 of the Special Law does not provide any provisions regarding the limitation period for inheritance recovery claims, and in light of the fact that it was enacted without including a special provision for the limitation period in the legislative process, it is inevitable that the limitation period of Article 999-2 of the Civil Code applies to the application of Article 11.

The Supreme Court concluded that, considering the purpose of the limitation period, the legislative purpose of the special law and the contents of the relevant regulations, the limitations of legal interpretation, and the necessity of legislation, Article 11(1) presupposes that the limitation period of Article 999(2) of the Civil Code applies to North Koreans' claims for inheritance recovery, Therefore, even in the case of North Koreans, the right to claim for inheritance recovery under Article 999(2) of the Civil Code lapses after 10 years from the date of infringement of the inheritance right, and the trial court's judgment that the claim for inheritance recovery filed by Plaintiff K, A's daughter, in 2011, 10 years after the infringement of A's inheritance right (1978), was improper because it was filed after the expiration of the exclusion period, was correct and dismissed the plaintiff's appeal.

4. Significance of the Judgment

Unlike the first judgment, which was the first judgment to exclude the application of the exclusion period for inheritance recovery claims under the Civil Code in an inheritance recovery lawsuit filed by a North Korean defector against a South Korean family member, the judgment in this case emphasized the purpose of the exclusion period for inheritance recovery claims (Article 999(2) of the Civil Code), which is to promptly finalize the legal relationship between the heirs and the third parties who inherited the inherited property, Unlike inheritance recovery claims under the Special Law, the judgment was based on legal stability rather than specificity, taking into account the relevant provisions such as paternity claims and recognition claims that recognize special exceptions to the exclusion period set forth in Article 999(2) of the Civil Code.

Against this majority view, the absence of a special exception to the time period in Article 11 of the Special Act does not necessarily mean that Article 999(2) of the Civil Code can be applied to North Koreans' claims for inheritance recovery, nor does it comply with the spirit of the Constitution, which is to build consensus among North and South Koreans as a single people and lay the foundation for peaceful reunification, There was a dissenting opinion by five Supreme Court justices that, based on the interpretation of Article 11(1) of the Special Act, a person who was a resident of North Korea can file an inheritance recovery claim within three years from the time he or she entered South Korea, even if 10 years have passed since his or her inheritance rights were violated, due to the extension of the exclusion period for inheritance recovery claims under the Civil Code.

The exclusion period system is a system that exceptionally extinguishes rights based on the passage of time, so the rules related to the exclusion period must be strictly interpreted, and (inferential) application of the relevant rules without explicit provisions may result in very harsh consequences for the right holder (especially those whose rights have been deprived) compared to the true heirs and their specific successors from the perspective of 'justice and equity', which is the spirit of the law. The majority's interpretation that the right to inheritance is extinguished simply because 10 years have elapsed from the date of the infringement of the right to inheritance, even for North Koreans who have defected, is inconsistent with the premise inherent in the exclusion period (which, like the statute of limitations, presupposes that the right holder can at least exercise the right), It is contrary to the basic principles of statutory interpretation and the principle of res judicata regarding the limitation of constitutionally guaranteed property rights, and is not in accordance with the spirit of the Constitution, which requires social integration between North and South Koreans to lay the foundation for peaceful reunification. The protection of transaction security that would be affected by the application of an estrangement period can be partially addressed by the special provisions for the return of value and contribution. We call for the introduction of special rules for the estrangement period as soon as possible.