유언을 뒤늦게 발견한 경우의 법률관계―유언등록부의 도입 필요성에 관하여―

Abstract

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.