대상재산(代償財産)에 대한 상속회복청구

According to Korean Civil Act Art. 999 clause 1, if the Right of Inheritance is infringed by a person who pretends to have the Right of Inheritance, the Person who has the Right of Inheritance may bring an action for Recovery of Inheritance. However, it is not clear whether a Claim for Recapture of a Substitute is allowed or not in the case when an unjustified inheritor is not able to return the original inherited property. Many countries, such as Germany and Switzerland, recognize the Notion of Substitute Property at the Claim for Recovery of Inheritance by Substantive Enactment or Interpreting Methodology. Especially, in Switzerland, the Intellection - Inherited Property is a kind of Separate Patrimony - has been the commonly accepted view. And the Idea, Legal Principles of Real Subrogation apply to Separate Patrimony, is also widely accepted. Similarly in Japan, Several scholars gave forth the same view. Recently in Korea, Lower Courts held whether a Claim for Inheritance Recovery on the newly acquired Substitute Property by Inherited Property was possible or not(2012gahab503883,509188,506103; 2013na2003420). The Courts concluded that such Claims couldn’t be admitted because Korea Civil Act didn’t have Substantive Enactment to recognize the Recovery on the Substitute Property like German Civil Act. But in the political aspects, it would be preferable to admit the Recovery Claim on the Substitute Property, because the profit by heritage should be vested to the Real Heir according to the Prospect of Justice. Theoretically, it is possible to view as follows. Inherited Property - the Subject of the Claim for Inheritance Recovery – is a kind of Separate Patrimony. And the Principle of Real Subrogation applies to Inherited Property which is Separate Patrimony.