민법 제1014조의 상속분가액지급청구권 再論—헌법재판소 2010.7.29.선고 2005헌바89 결정에 대한 비판적 연구—

Abstract

‘A claim for payment of the amount equivalent to one’s share of inheritance (hereinafter referred to as ‘payment claim’)’ is to divide inheritance property equivalently among legitimate coheirs qualified for inheritance. It is in distinction from ‘a claim for recovery of inheritance (hereinafter referred to as ‘recovery claim’)’ in that the opposite party of the right is not the person who pretends to have the right of inheritance as a third party but is a legitimate coheir, that the right is not redeemed through civil proceedings but through family litigation proceedings, and that the petitioner’s right does not need to be restricted to protect a third party’s legal status or to secure the safety of transaction. In the Constitutional Court, however, there was a majority opinion that a payment claim was a sort of recovery claims and the exclusion period, pertaining to the recovery claim, had to be applied to the exercise of the payment claim. I don’t agree with this opinion. Even if the exclusion period, pertaining to the recovery claim, should be applied to the exercise of the payment claim, it requires that the period should be reckoned from the time of recognition or final ruling.