Extinctive prescription of the claim for subdivision under customary law

According to the customary law on the inheritance of property before the enforcement of the Civil Code, if the head of family dies and the head of South and North Korea succeeds to the inheritance of the head of the household and there are several persons between South and North Korea, that head of South and North Korea shall, at the same time as the inheritance of the head of the household and the inheritance of the former head of the household, once he succeeds to the entire heritage of the former head of the household, and he acquires about 1/2 of the former head of the household, and the remainder, in principle, be equally apportioned to the male head of the household, and the person between South and North in response thereto has the right to claim a subdivision against the male head of the family. As such, the right to claim a subdivision

Article 11 of the old Decree on Maritime Affairs and Civil Affairs (Ordinance No. 7 of March 1912, 191), Article 25 of the Addenda to the amended Civil Act

Supreme Court Decision 67Meu25 Decided November 25, 1969 (No. 17-4, 108), Supreme Court Decision 94Da36599 Decided November 18, 1994 (Gong195Sang, 54)

Plaintiff (Law Firm Rosp, Attorneys Southern-hee et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jae-chul, Counsel for defendant-appellant)

Incheon District Court Decision 2004Na5877 Decided April 21, 2005

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

According to the customary law on the inheritance of property before the enforcement of the Civil Act, in cases where the head of Australia died and the head of South and North Korea succeeds to the inheritance of the head of the household and there are several persons between South and North Korea, the head of South and North Korea has the obligation to acquire about 1/2 of the inheritance of the former head of the household at the same time, and to equally distribute the remainder to the persons between South and North Korea, in principle, and in response, a person between South and North Korea has the right to claim a decentralization against the head of the family who is the head of the South and North Korea (see, e.g., Supreme Court Decisions 67Meu25, Nov. 25, 1969; 94Da36599, Nov. 18, 1994). The right to claim a decentralization under the above customary law has expired after the lapse of ten years from the date when the right holder became divided, as in general civil claims.

However, according to the records, the defendant alleged that the plaintiff could not respond to the plaintiff's claim because he did not exercise the right to request subdivision for 27 years after the division. The defendant's above assertion is sufficient to deem that the right to request subdivision of this case has expired by prescription. Thus, the court below should have deliberated and decided on the above argument by exercising the right to request explanation as to the purport of the defendant's above argument.

Nevertheless, since the court below accepted the plaintiff's claim for subdivision without making any judgment as to this, it is erroneous in the misapprehension of legal principles as to the extinctive prescription of the right to request tin, the non-exercise of right to request tin, the hearing failure, and the right to request subdivision. The part of the ground of appeal alleging this is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)