ACT ON SPECIAL CASES CONCERNING FAMILY RELATIONSHIP AND INHERITANCE BETWEEN RESIDENTS IN SOUTH AND NORTH KOREA
Act No. 11299, Feb. 10, 2012
Amended by Act No. 12892, Dec. 30, 2014
Act No. 13763, Jan. 19, 2016
CHAPTER Ⅰ GENERAL PROVISIONS
The purpose of this Act is to promote the stabilization of family relationships between residents in South and North Korea and their legal status with regard to inheritance, bequest, etc. and to contribute to efficient management of property in Korea, the ownership of which residents in North Korea acquire by inheritance, bequest, etc., by providing for family relationships, inheritance, and bequest between residents in South and North Korea and matters related thereto.
| Article 2 (Basic Principles for Application of Act) |
In interpreting and applying this Act, the fact that the relationship between South and North Korea is not a relationship between states, but an extraordinary relationship formed tentatively in the course of pursuing peaceful unification shall be taken into consideration.
The terms used in this Act shall be defined as follows:
| 1. | The term "South Korea" means the area south of the Military Demarcation Line, while the term "North Korea" means the area north of the Military Demarcation Line; |
| 2. | The term "South Korean" means a resident of South Korea, while the term "North Korean" means a resident of North Korea; |
| 3. | The term "termination of division" means a situation in which a single sovereign system is formed legally or actually in South and North Korea; |
| 4. | The term "free communication" means a situation in which free communication by letters and telecommunications between South and North Korea is fully permitted and no special restriction is imposed on mutual visits, compared with visits to and from foreign countries; |
| 5. | The term "separation of families between South and North" means that family members are dispersed over South and North Korea, irrespective of the causes and circumstances thereof. |
| Article 4 (Judicial Jurisdiction) |
| (1) | A court shall have jurisdiction over a case to which this Act applies or a case related to a case to which this Act applies, if a party to the case or the issue in dispute is actually related to South Korea. In such cases, a court shall determine whether an actual relation exists in accordance with reasonable principles that conform to the principle of allocation of judicial jurisdiction. |
| (2) | A court shall determine whether it has judicial jurisdiction in accordance with the provisions of laws of the Republic of Korea regarding jurisdiction, but shall give consideration to the objectives of paragraph (1) and basic principles provided for in Article 2. |
| (3) | If a person is unable to file a lawsuit with a court having judicial jurisdiction in accordance with paragraphs (1) and (2) due to an actual bar, he/she may file the lawsuit with the competent court in an area in which the Supreme Court sits. |
| Article 5 (Jurisdiction of Family Courts) |
| (2) | The collegiate division of a family court shall have exclusive jurisdiction over a case filed for seeking recovery of inheritance under Article 11 (1), and such case shall be heard and tried in accordance with the procedure for Type-C family cases as defined in the Family Litigation Act. |
| (3) | The family court in an area where a North Korean's property is situated shall have exclusive jurisdiction over a case regarding appointment or replacement of the North Korean's estate administrator. |
CHAPTER Ⅲ SPECIAL CASES CONCERNING FAMILY RELATIONSHIPS BETWEEN SOUTH AND NORTH KOREANS
| Article 6 (Special Cases concerning Bigamy) |
| (1) | If a person who has a spouse left in North Korea, to whom he/she had been married before the Korean Military Armistice Agreement (hereinafter referred to as the "Military Armistice Agreement") was executed on July 27, 1953, is married to another spouse in South Korea without the first marital relationship having been dissolved, bigamy occurs. |
| (2) | If bigamy occurs in a situation referred to in paragraph (1), no person may apply for revocation of the marriage on the ground of bigamy, notwithstanding subparagraph 1 of Article 816 and Article 818 of the Civil Act: Provided, That the foregoing shall not apply where spouses of the second marriage agree to revoke bigamy. |
| (3) | If bigamy has occurred in a situation referred to in paragraph (1), but the spouse of the first marriage who resides in North Korea has been married to another person, the first marital relationship between the spouses shall be deemed dissolved at the time bigamy occurs. |
| (4) | The provisions of paragraphs (1) through (3) shall also apply where a person who has a spouse left in South Korea, to whom he/she had been married before the Military Armistice Agreement was executed, has been married to another person in North Korea without the first marital relationship having been dissolved. |
| Article 7 (Special Cases concerning Effect of Marriage Following Cancellation of Declaration of Disappearance) |
| (1) | If a person who has a spouse left in North Korea, to whom he/she had been married before the Military Armistice Agreement was executed, is married to another person in South Korea after the first spouse was declared missing, the first marital relationship shall not be reinstated even if the declaration of missing is cancelled: Provided, That if either party or both parties to the second marriagewere aware that the spouse in North Korea was still alive at the time it was declared that the spouse went missing, the first marriage shall be reinstated and bigamy occurs. |
| (2) | Article 6 (2) shall apply mutatis mutandis to a claim for revocation for bigamy, where bigamy occurs in a situation referred to in the proviso to paragraph (1). |
| (3) | Where bigamy occurs in a situation referred to in the proviso to paragraph (1) and the spouse of the first marriage who resides in North Korea has also been married to another person, the first marital relationship shall not be reinstated even the declaration of the spouse's missing is cancelled. |
| Article 8 (Special Cases concerning Claims Seeking Confirmation of Paternity) |
| (1) | If a North Korean (including a former North Korean) who is a child born within wedlock, has not been registered in the family relationship register of his/her father or mother who is a South Korean, a person who is entitled to file claim under Article 865 (1) of the Civil Act may file a claim seeking confirmation of paternity. |
| (2) | A claim referred to in paragraph (1) may be filed within two years from the date on which bars to filing the claim are removed by the termination of division, free communication, or any other cause, notwithstanding Article 865 (2) of the Civil Act. |
| (3) | Paragraphs (1) and (2) shall apply mutatis mutandis to a claim filed for seeking confirmation of paternity, where a South Korean is a child born within wedlock, but his/her father or mother who is a North Korean (including a former North Korean) has not been registered in his/her family relationship register. |
| Article 9 (Special Cases concerning Claims Seeking Recognition of Affiliation) |
| (1) | A North Korean (including a former North Korean) child born out of wedlock, one of his/her lineal descendents, or his/her legal representative may file a claim seeking recognition of affiliation against his/her South Korean father or mother. |
| (2) | A claim under paragraph (1) may be filed within two years from the date on which bars to filing the claim are removed by termination of division, free communication, or any other cause, notwithstanding Article 864 of the Civil Act. |
| (3) | Paragraphs (1) and (2) shall also apply mutatis mutandis where a South Korean who is a child born out of wedlock, one of his/her lineal descendents, or his/her legal representative files a claim seeking recognition of affiliation against his/her North Korean father or mother (including a former North Korean). |
CHAPTER Ⅳ NORTH KOREAN SPECIAL CASES CONCERNING INHERITANCE, ETC. BETWEEN SOUTH AND NORTH KOREANS
| Article 10 (Special Cases concerningClaims for Return of Inherited Property) |
| (1) | When a declaration of missing (including an absentee declaration under the Act on Special Measures for Absentee Declaration) is finally cancelled by judgment with respect to a North Korean who had been declared missing before the promulgation date of this Act, after separation of family members between South and North Korea, the person who obtains such judgment to cancel the declaration of missing may file a claim for return of property against the person who acquired the property directly on the ground of the declaration of missing (including such person's heirs). |
| (2) | If the party against whom a claim for return of property is filed under paragraph (1) is a bona fide person, the party owes an obligation to return benefits that he/she has acquired within the scope of benefits that remain as at the time of claim, while if such party is a mala fide person, the party shall return benefits that remain as of the promulgation date of this Act, out of benefits he/she has acquired, with interest added thereto, and shall compensate for any loss, if any. |
| (3) | If a declaration of missing is cancelled on the ground provided for in paragraph (1), the cancellation of the declaration of missing shall not affect the validity of acts done until before the promulgation date of this Act and the effects of acts done in good faith until before the judgment to cancel the declaration of missing becomes final and conclusive, notwithstanding the proviso to Article 29 (1) of the Civil Act. |
| (4) | If a North Korean declared dead on any ground other than the declaration of missing (including the absentee declaration under the Act on Special Measures for Absentee Declaration) before the promulgation date of this Act after the separation of family members between South and North Korea is still alive, the surviving person may file a claim to return his/her property against the person who acquired the property (including his/her heirs) directly on the ground of declaration of death. |
| (5) | Paragraphs (2) and (3) shall apply mutatis mutandis to claims for return of property under paragraph (4). In such cases, "the judgment to cancel the declaration of missing becomes final and conclusive" in paragraph (3) shall be construed as "a claim to return inherited property is filed". |
| Article 11 (Special Cases concerning Claims for Recovery of Inheritance) |
| (1) | A North Korean (including a former North Korean) who was unable to inherit from a South Korean inheritee, due to separation of family members between South and North Korea, or his/her legal representative may file a claim for recovery of inheritance under Article 999 (1) of the Civil Act. In such cases, if another joint heir has divided, or otherwise disposed of, property, such person may claim for the joint heir to pay the amount equivalent to his/her share of inheritance. |
| (2) | In cases falling under paragraph (1), if any joint heir has supported the inheritee by living together, nursing, or any other means for a considerable period or has contributed significantly to the maintenance of, or increase in, the inheritee's property, the property determined by deducting the amount of contribution of such joint heir agreed between joint heirs from the value of the inheritee's property at the time of commencement of inheritance shall be deemed the inherited property in calculating the share of inheritance of the claimant for recovery of inheritance. |
| (3) | If heirs fail, or are unable, to reach an agreement under paragraph (2), the competent family court shall determine the contributor's amount of contribution at the request of the contributor referred to in paragraph (2), taking into consideration the time, method, and degree of contribution, the amount of inherited property, and other circumstances. |
| (4) | The amount of contribution provided for in paragraphs (2) and (3) shall not exceed the amount calculated by deducting the value of a bequest from the value of the inheritee's property at the time inheritance commences. |
| Article 12 (Special Cases concerning Deemed Absolute Acceptance of Inheritance) |
If a North Korean at the time of commencement of inheritance (including a former North Korean) was unable to declare qualified acceptance or renunciation as an heir within the period specified in Article 1019 (1) of the Civil Act due to division, he/she shall be liable to perform the inheritee's obligations and bequest within the scope of property that he/she is entitled to acquire by inheritance, notwithstanding subparagraph 2 of Article 1026 of the Civil Act.
CHAPTER Ⅴ MANAGEMENT OF PROPERTY INHERITED BY OR BEQUEATHED TO NORTH KOREANS
| Article 13 (Appointment, etc. of Estate Administrators) |
| (1) | Where a North Korean acquires a right to any property in South Korea by inheritance or bequest or due to a cause specified in Article 10 (1) and (4), he/she shall file a petition with the competent court to appoint an estate administrator to be responsible for the management of the North Korean's property in South Korea (including property acquired as a fruit from, or the price for, the property inherited or bequeathed; hereinafter referred to as "inherited or bequeathed property, etc.") within one month from the date on which the acquisition of the right is affirmed. |
| (2) | If a North Korean fails, or is unable, to file a petition to appoint an estate administrator in accordance with paragraph (1), one of his/her relatives as defined in Article 777 of the Civil Act, an interested party, or the public prosecutor in charge may file a petition with the competent court to appoint an estate administrator. |
| (3) | A testator who leaves a bequest to a North Korean may file a petition with the competent court to appoint an estate administrator. Paragraphs (1) and (2) shall not apply in such cases. |
| (4) | Paragraphs (1) and (2) shall apply mutatis mutandis to appointment of another estate administrator where an estate administrator resigns or is dead. In such cases, "date on which the acquisition of the right is affirmed" in paragraph (1) shall be construed as "date on which an estate administrator resigns or dies". |
| (5) | If an estate administrator falls under any of the following subparagraphs, the relevant North Korean, one of his/her relatives as defined in Article 777 of the Civil Act, an interested party, or the public prosecutor in charge may file a petition with the competent court to replace the estate administrator: |
| 1. | If the estate administrator is disqualified on any ground specified in Article 16; |
| 2. | If the estate administrator manages inherited or bequeathed property in an inappropriate manner and endangers, or is clearly likely to endanger, the property; |
| 3. | If the estate administrator neglects any of his/her duties specified in this Act; |
| 4. | If any other event or cause similar to any of the events or causes specified in subparagraphs 1 through 3 occurs. |
| (6) | Upon receipt of a petition provided for in paragraphs (1) through (4), a court shall appoint an estate administrator suitable for the management of inherited or bequeathed property and may replace an estate administrator with person suitable for the management of inherited or bequeathed property upon receipt of a petition provided for in paragraph (5). |
| Article 14 (Estate Administrators' Duty of Care, etc.) |
| Article 15 (Effect of Legal Acts Done Other than through Estate Administrators) |
A legal act done other than through an estate administrator with regard to inherited or bequeathed property shall be void: Provided, That the foregoing shall not apply where such act has been done with permission from the Minister of Justice in accordance with Article 19.
| Article 16 (Grounds for Disqualification of Estate Administrators) |
In order to qualify for appointment as an estate administrator, a person shall be a South Korean who does not fall under any of the following subparagraphs: <Amended by Act No. 12892, Dec. 30, 2014; Act No. 13763, Jan. 19, 2016>
| 1. | A minor, a person under adult guardianship, or a person under limited guardianship; |
| 2. | A person for whom a decision to commence rehabilitation proceedings, simplified rehabilitation proceedings or personal rehabilitation proceedings has been made or a person declared bankrupt; |
| 3. | A person in whose case a sentence of suspension of qualification or any heavier punishment imposed upon him/her has not been completed; |
| 4. | A person who was or is a party to a lawsuit filed against a North Korean who acquired inherited or bequeathed property or the person's spouse or one of the person's lineal relatives by blood. |
| Article 17 (Estate Administrators' Duty to Report, etc.) |
| (1) | An estate administrator shall report the name and address of the relevant North Korean, the list of inherited or bequeathed property, and other information specified by Presidential Decree to the Minister of Justice within one month from the date on which he/she is appointed as an estate administrator. |
| (2) | An estate administrator who resigns from his/her position or who is replaced by another person under Article 13 (5) and (6) shall report the fact of his/her resignation and other information specified by Presidential Decree within one month from the date on which he/she resigns or is replaced by another person. |
| (3) | An estate administrator shall prepare and preserve a list of property that shall clearly state changes in property's inheritance or bequeathment, as prescribed by Presidential Decree, and shall report changes therein to the Minister of Justice. |
| (4) | If it is necessary to check the current status of an estate administrator's management of property or to manage and preserve inherited or bequeathed property, the Minister of Justice may demand the estate administrator to submit relevant data or may order the estate administrator to take necessary measures. |
| (5) | Expenses incurred in cases of paragraphs (1) through (4) shall be reimbursed from inherited or bequeathed property. |
| Article 18 (Estate Administrators' Authority) |
| (1) | When an estate administrator intends to do an act outside the scope of his/her authority bestowed under the provisions of Article 118 of the Civil Act, he/she shall obtain permission therefor from the Minister of Justice, as prescribed by Presidential Decree. |
| (2) | A disposal or contract made without permission required by paragraph (1) shall be void. |
| Article 19 (North Koreans' Direct Use, Management, etc.) |
| (1) | A person who intends to allow a North Korean owner of inherited or bequeathed property to directly use or manage that property shall obtain permission therefor from the Minister of Justice, as prescribed by Presidential Decree. The foregoing shall also apply where a person intends to revise an important matter specified by Presidential Decree in the permission. |
| (2) | In any of the following cases, the Minister of Justice may issue a permit under paragraph (1) within the extent necessary for the purpose: Provided, That the foregoing shall not apply to cases specified by Presidential Decree as cases where such permit is likely to undermine national security, the maintenance of order, or public welfare: |
| 1. | Where it is required for personal appropriation for livelihood of the owner or his/her relatives as defined in Article 777 of the Civil Act; |
| 3. | Where a case is specified by Presidential Decree as a case similar to any of the cases provided for in subparagraphs 1 and 2. |
| (3) | When the Minister of Justice intends to issue a permit under paragraph (1), he/she may attach conditions to the permit, as prescribed by Presidential Decree, taking into consideration national security, the maintenance of order, and public welfare. |
| (4) | When the Minister of Justice issues a permit under paragraph (1), he/she may issue a comprehensive permit by limiting the types of property rights subject to the permit, the methods of use and management of the property rights, the value of property, etc., as prescribed by Presidential Decree. |
| (5) | In any of the following cases, the Minister of Justice may revoke a permit issued under paragraph (1): Provided, That a permit shall be revoked in cases of subparagraph 1: |
| 1. | If a person obtains a permit by fraud or other wrongful means; |
| 2. | If a person breaches a condition attached under paragraph (3); |
| 3. | If the case is specified by Presidential Decree as a case in which such revocation is necessary for national security, the maintenance of order, or public welfare. |
| Article 20 (Requests for Cooperation, etc.) |
| (1) | If it is necessary to verify whether a North Korean has acquired or changed inherited or bequeathed property or personal data about a North Korean who has acquired inherited or bequeathed property, the Minister of Justice may request a related administrative agency, organization, or individual to cooperate with him/her by confirming facts or by providing relevant data. In such cases, the related administrative agency, organization, or individual so requested shall cooperate with the Minister of Justice, except in extraordinary circumstances. |
| (2) | The Minister of Justice shall notify the Minister of Unification of facts reported by an estate administrator, permits issued by the Minister of Justice, and information acquired under paragraph (1), as prescribed by Presidential Decree. |
| Article 21 (Register of North Koreans who Acquired Inherited or Bequeathed Property) |
| (1) | In order to register and manage the following information, the Minister of Justice shall prepare and preserve a register of North Koreans (hereinafter referred to as "Register of North Koreans"), as prescribed by Presidential Decree: |
| 1. | Personal data about North Koreans who acquired inherited or bequeathed property; |
| 2. | Information about North Koreans' acquisition of inherited or bequeathed property; |
| 3. | Other information specified by Presidential Decree as necessary for efficient management of inherited or bequeathed property. |
| (2) | The Minister of Justice shall register and manage information reported in accordance with Articles 17 through 19 and information about changes since reporting, and permits in the Register of North Koreans. |
| (3) | The Minister of Justice shall givea unique registration number to each North Korean registered in the Register of North Koreans (hereinafter referred to as "North Korean registration number"), as prescribed by Presidential Decree. |
CHAPTER Ⅵ PENAL PROVISIONS AND FINES FOR NEGLIGENCE
| Article 22 (Penal Provisions) |
| (1) | Any person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won: |
| 1. | Any person who allows a North Korean to directly use and manage any property without a permit required by Article 19 (1) (including a revised permit); |
| 2. | Any person who obtains a permit for direct use and management by a North Korean under Article 19 (1) by fraud or other wrongful means. |
| (2) | Any person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30 million won: |
| 1. | A person who does an act outside the scope of his/her authority without permission therefor from the Minister of Justice, in violation of Article 18 (1); |
| 2. | A person who breaches a condition attached to a permit issued under Article 19 (3). |
| (3) | Any person who attempts to commit a crime specified in paragraph (1) shall be punished. |
| Article 23 (Fines for Negligence) |
| (1) | Any person who falls under any of the following subparagraphs shall be punished by a fine for negligence not exceeding ten million won: |
| 1. | A person who fails to report within the period specified in Article 17 (1) and (2) or makes a false representation in such report; |
| 2. | A person who fails to prepareor preserve a list of property in accordance with Article 17 (3) or who makes a false representation in preparing such list of property; |
| 3. | A person who fails to report a change in inherited or bequeathed property in accordance with Article 17 (3) or makes a false representation in reporting such change; |
| 4. | A person who fails to comply with an order issued by the Minister of Justice to take measures under Article 17 (4). |
| (2) | Fines for negligence provided for in paragraph (1) shall be imposed and collected by the Minister of Justice, as prescribed by Presidential Decree. |
ADDENDA
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
Article 2 (No Retroactive Effect and Transitional Measures)
This Act shall not affect validity arising under any Act relevant to matters regulated by this Act before this Act enters into force: Provided, That this Act shall apply to cases pending in a court between a South Korean and a North Korean with respect to family relationship, inheritance, or bequest as at the time this Act enters into force.
Article 3 (Applicability to Appointment of Estate Administrators)
From the date in which this Act enters into force, the provisions of Chapter V (Articles 13 through 21) shall also apply to cases where a North Korean acquired any property in South Korea by inheritance or bequest or by exercising a right to claim for return of inherited property before this Act enters into force. In such cases, "the date on which the acquisition of the right is affirmed" in Article 13 (1) shall be construed as "the date this Act enters into force".
ADDENDA <Act No. 12892, Dec. 30, 2014>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA <Act No. 13763, Jan. 19, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Transitional Measures concerning Incompetent Persons, etc.)
The former provisions shall apply to a person who was already declared incompetent or quasi-incompetent at the time this Act enters into force and for whom such declaration remains effective under Article 2 of the Addenda to the partially amended Civil Act (Act No. 10429).