현행민법상 유언의 방식에 관한 연구

• 영문명: A Study on the Formality of Will in Civil Law
• 발행기관: 한국가족법학회
• 저자명: 김영희(Young-Hee Kim)
• 간행물 정보: 『가족법연구』家族法硏究 第20卷 2號, 117~160쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.07.01

영문 초록

  A will is a after-life legal transaction which becomes effective after the testator"s death, and it requires strict formalities in order to prevent its fabrication and falsification as well as to secure testator"s real intent. A will is valid only if it is executed with formalities required by the relevant jurisdiction"s law. As for our country, considering the fact that the custom of the execution of a will is not commonly accepted and legal knowledge regarding formalities of a will is insufficient, when people strictly interpret the formality of a will, it may lose its effect due to the formality violation. Therefore, many theories and judicial precedents in many countries including ours country the formalities of a will moderately interpret loosened from the strictness in order to maintain its effectiveness and secure the testator"s real intent. However, the problem is where to draw the limits line of loosening the requirement of the formality of a will. If the formality of a will is loosened without restriction, then the will actually be acknowledged as unformed will, which contradicts the intent of the law. If we loose the formality of a will, the testator"s real intent becomes hard to be recognized, and if we tighten the formality of a will, the freedom of will becomes in danger. Therefore antinomic problem arises. In other words, judgement on formality violation is heavily depended on the balance level of two contradicting issues. We try to guarantee the freedom of a will, and secure the testator"s intent by loosening the strictness of the formality of the will, however, we face today"s problem of where to draw a line of loosening the strictness of the formality of a will.
  In today"s aging society, a will are important matter which can not be left out. In current where importance of a will increases as the inheritance becomes an equality inheritance, obeying the formality of a will can become a definite problem. Due to the strictness of the formality of a will, there has been many wills which cannot be given effect, becoming the cause of many disputes. Regarding the formality of a will, many theories and judicial precedents tend to acknowledge the effectiveness of the will which formality is interpreted loosely, when it is determined to contain testator"s clear and sincere intention. This attitude is appropriate for the periodical importance and necessity of the will, especially to secure its freedom and revitalization.
  However loosened interpretation according to the formality of a will has limitation on securing testator"s real intention, therefore there must be a reform of the current law of a will through full examination. Especially current civil law adapted the traditional oral will principle, so people with hearing and speaking disabilities cannot execute the will of specific types. It requires standard procedure of oral statements in not only public certificate will type, but also in classified certificate will type and oral certificate will type, therefore people with hearing and speaking disabilities consequently cannot execute these types of will. Within the territory of securing the real intention of the will, methods such as interpreting and etc need to be allowed for these people, otherwise the current law of will unjustly restrict the freedom of a will of people with hearing and speaking disabilities, losing the equality. People with hearing and speaking disabilities can communicate through interpretations such as sign languages and etc, and the contents of the will can be approved through readings and interpretations. The strict traditional verbal will of the current civil law must be amended to expand the concept of oral statements, and also there must be a discussion regarding the reform of current law of will to introduce new methods (such as sign language interpretations and etc) which can replace th

목차

Ⅰ. 序論
Ⅱ. 자필증서유언방식
Ⅲ. 공정증서유언방식
Ⅳ. 비밀증서유언방식
Ⅴ. 구수증서유언방식
Ⅵ. 結論
《참고문헌》
영어 초록

키워드

유언 유언제도 유언법 유언의 방식 자필증서유언 공정증서유언 비밀증서유언 구수증서유언 Will Testament Testamentary Instrument Formality of    will Holographic will Nuncupative will Oral will Statutory will