遺言의 無效와 辯護士의 責任*-獨逸과 英國의 論議를 중심으로-

Abstract

Nonconforming Will and Solicitor’s Liability-Centering Around German and English Dispute-Chang-Hyun Lee*攀 * Candidate for Ph. D., Seoul National University, Attorney at Law.攀攀This paper aims to dispute as to which remedy is available to the disappointed intended beneficiary under will in case he lost his legacy on account of solicitor’s negligence. While German Supreme Court held the disappointed beneficiary could recover damages for solicitor’s negligence in contract, House of Lords held the disappointed beneficiary could recover damages for solicitor’s negligence in tort. Because there is neither tortious liability of pure economic loss in Germany nor contract for the benefit of third parties in England. Traditionally, the protection of pure economic loss is the exclusive domain of the law of contract, but exceptionally can be permitted by the law of torts.In Korea the disappointed beneficiary can recover damages to solicitor in tort. Because contractual remedy is in danger of limiting testator’s testamentary freedom. But the disappointed beneficiary can't remedy unjust enrichment to the unintended beneficiary. Because intestacy holds good. The categorisation of the beneficiary’s interest as a mere spes successionis is not right. because upon the death of the testator the beneficiary’s interest crystallises and the mere expectation ought then to become an entitlement to the legacy and due to the solicitor’s negligence the beneficiary’s interest never becomes an entitlement.