유언을 뒤늦게 발견한 경우의 법률관계―유언등록부의 도입 필요성에 관하여― (A Legal Study on Will Found After Intestate Succession)

서지정보

· 발행기관 : 한국가족법학회
· 수록지 정보 : 가족법연구 / 28권 / 1호 / 1 ~ 30페이지
· 저자명 : 오병철

초록

It is very important for an heir or interested parties to know the existence of a will. There is no system that enables the heir or interested parties to be aware of the existence of a will in Korean civil law. Thus, it is possible to find a will after proceeding an intestate succession without the awareness of the existence of a will for a long period of time. When an intestate succession is proceeded without knowing the existence of a will, a complex problem may occur in the case of ① period of filing an action of denial of paternity by will, ② comprehensive gift or real estate by will, ③specific gift by will, ④ designation of a method for division of succession, and ⑤ prohibition of division of succession.
In this research, following conclusions are drawn. In legal theory, followings conclusion are suggested: necessity ① to limit a period of filing a denial of paternity to up to two years after the date a will was completed, ② to disable a request for the recovery of inheritance of a person who receives specific gift by will if comprehensive gift by will is found over 10 years after the death of the testator, ③ to oblige an executor of will to bear liability of compensation without fault by incurring original claim of family law in spite of the contractual effect of specific gift by will, ④ to acknowledge the effect of a partition by agreement for every heir when the partition is proceeded without knowing the designation of division of succession or prohibition on division of succession by will.
Finally, legislatively, I proposed ① to allow transfer of an equal real right to specific gift by will as comprehensive gift by will, and ② to introduce a register of will. Besides, I also presented theory of legislation that establishes ③ the starting point of reckoning for denial of paternity by a will, ④ responsibility for impossibility of performance of specific gift by will, ⑤ force of a will to designate a method for division of succession, and ⑥ effect of partition by agreement against prohibition of division of succession in the civil code.

영어초록

It is very important for an heir or interested parties to know the existence of a will. There is no system that enables the heir or interested parties to be aware of the existence of a will in Korean civil law. Thus, it is possible to find a will after proceeding an intestate succession without the awareness of the existence of a will for a long period of time. When an intestate succession is proceeded without knowing the existence of a will, a complex problem may occur in the case of ① period of filing an action of denial of paternity by will, ② comprehensive gift or real estate by will, ③specific gift by will, ④ designation of a method for division of succession, and ⑤ prohibition of division of succession.
In this research, following conclusions are drawn. In legal theory, followings conclusion are suggested: necessity ① to limit a period of filing a denial of paternity to up to two years after the date a will was completed, ② to disable a request for the recovery of inheritance of a person who receives specific gift by will if comprehensive gift by will is found over 10 years after the death of the testator, ③ to oblige an executor of will to bear liability of compensation without fault by incurring original claim of family law in spite of the contractual effect of specific gift by will, ④ to acknowledge the effect of a partition by agreement for every heir when the partition is proceeded without knowing the designation of division of succession or prohibition on division of succession by will.
Finally, legislatively, I proposed ① to allow transfer of an equal real right to specific gift by will as comprehensive gift by will, and ② to introduce a register of will. Besides, I also presented theory of legislation that establishes ③ the starting point of reckoning for denial of paternity by a will, ④ responsibility for impossibility of performance of specific gift by will, ⑤ force of a will to designate a method for division of succession, and ⑥ effect of partition by agreement against prohibition of division of succession in the civil code.

참고자료

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