조선초기 상속법제에서 유언 자유의 의미

Abstract

There is a vague belief that freedom of will is the product of western society. However, it is normal at the moment of death for people to state their wishes as to the inheritance and moreover, even our ancestors made use of wills in succession to property. The principle of the freedom of will was a general principle that provided for the first code in the succession law of KYONGKUKTAIJUN. It was permitted firstly, that a testator deprive the heir's apparent right by will with the name of unfaithfulness to their parents. Secondly, a testator could change the succession rank or give people who were not heirs by law by a general legacy and a specific legacy. In addition, a testator also could divide the share freely. In other words, a testator could give more property to some children or set up the worship property. However, there are also provisions protecting the heir apparent in KYONGKUKTAIJUN. So, for example, if there existed an ancestor's order in a will that stated, "Don't give my inheritance to people who are not my descendants", the inheritance had to be left to the heirs. There were not only guaranteed freedom of will but also contained articles to protect heirs like this in KYONGKUKTAIJUN and it was similar to modern succession law system. In spite of it may have otherwise disregarded. One of the reason is that Korean legal history was interrupted by Japan. However, more important thing is how to use freedom of will. Although the will itself is not familiar with us because it is made on the supposition that we'll die, we need to exercise the freedom of the will actively if we take into account that it is effective to prevent a succession dispute. Therefore it has a significance that our ancestors often divided their property evenly between their children for the sake of family harmony in many cases by using their freedom of will.