[유언집행자선임][미간행]
In cases where an executor becomes disqualified prior to the death of the testator, such as the death of the executor prior to the death of the testator, whether the executor becomes an executor of the will (affirmative in principle), and whether the court may appoint an executor pursuant to Article 1096(1) (negative)
Articles 1073(1), 1093, 1094, 1095, and 1096(1) of the Civil Act
Appellant (Law Firm Han, Attorneys Choi Byung-ju et al., Counsel for the plaintiff-appellant)
The deceased Principal of the case
Changwon District Court Order 2013BB53 dated February 20, 2014
The reappeal is dismissed.
The grounds of reappeal are examined.
1. Article 1093 of the Civil Act provides that a testator may designate an executor by will, and that the designation of an executor may be entrusted to a third person. Article 1094 of the Civil Act provides for the procedures, etc. for the designation of an executor by a third person who is entrusted. Article 1095 provides that, in the absence of an executor designated by Articles 1093 and 1094, an executor shall be an executor. Article 1096(1) provides that, in the absence of an executor designated by the provisions of Articles 1095, an executor shall be appointed at the request of an interested person.
In full view of the contents and purport of the provisions of the Civil Act, and the fact that the will becomes effective from the time when the testator died (Article 1073(1)), etc., inasmuch as the executor of a will loses his qualification, such as the case where the executor of a will dies before the death of the testator, barring any special circumstance, Article 1095 is applicable and an inheritor becomes the executor of a will. In such a case, even though there exists an inheritor, the court cannot appoint an executor pursuant to Article 1096(1).
2. According to the record, in this case, the testator designated the person other than the applicant for the testamentary gift to the re-appellant for the execution of the will, but the person other than the applicant died, and the testator died only after the person other than the applicant died.
In such a case, according to the legal principles as seen earlier, the inheritor of the testator becomes an executor pursuant to Article 1095, and the court cannot appoint an executor pursuant to Article 1096(1).
Although the court below partly inappropriate part in its reasoning, it did not err by misapprehending the legal principles on Articles 1095 and 1096 of the Civil Act, which affected the conclusion of the court of first instance, which dismissed the re-appellant's request for appointment of the executor of this case.
Meanwhile, Supreme Court Order 2007S31 dated October 18, 2007 pertaining to the death of a person who was designated as an executor after the death of the testator, and thus, it is not appropriate to invoke the instant case and the case differently.
3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ko Young-han (Presiding Justice)