[소유권이전등기][공1996.11.1.(21),3129]
Whether a will is invalidated due to the loss or loss of a will document (negative)
Unless the testator is deemed to have withdrawn the will, the person interested may assert the validity of the will by proving the contents of the testamentary document, not solely on the ground that the testamentary document has been destroyed or lost after the formation of the will.
Articles 1073, 1108, and 1110 of the Civil Act
Plaintiff 1 and 3 others (Law Firm Samung General Law Office, Attorneys Shin Sung-chul et al., Counsel for the plaintiff-appellant)
Defendant (Attorney Kim-type, Counsel for defendant-appellant)
Seoul High Court Decision 95Na35083 delivered on April 19, 1996
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. On the first ground for appeal
The court below held that the non-party 1 could not be deemed to have withdrawn the will by intentionally destroying the above testament certificate before the birth, since the fact that the non-party 1 kept the testament certificate of this case after the death of the deceased non-party 2, who is the testator, is recognized. There is no error of misconception of facts or incomplete deliberation due to a violation of the rules of evidence such as the theory of lawsuit.
As such, unless the testator cannot be deemed to have withdrawn the will, the will of this case is not invalidated solely on the ground that the testament of this case was destroyed or lost after the formation of the will, and interested parties can assert the validity of the will by proving the contents of the testamentary document.
In the end, the decision of the court below on the same position is correct, and there is no error in the misapprehension of legal principles as to the loss or loss of a testamentary document, such as the theory of lawsuit, and the validity of a will. There is no reason
2. On the second ground for appeal
The court below held that the defendant, as an executor, sold the real estate of this case at an unfairly low price in violation of the duty of due care as a good manager, thereby causing damages to the inheritor equivalent to the difference between the reasonable market price of the real estate of this case and the actual purchase price, and there is no error of law by misunderstanding facts due to violation of the rules of evidence or misunderstanding of legal principles as to the duty of due care of a good manager
3. Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)