[예금반환·예금][미간행]
[1] The validity of a will which is consistent with the true will of the testator but which is inconsistent with the requirements and methods stipulated in Articles 1065 through 1070 of the Civil Code (negative)
[2] Whether a will without the seal of the testator becomes effective as a will by a certificate of completion (negative)
[1] Articles 1065, 1066, 1067, 1068, 1069, and 1070 of the Civil Act / [2] Article 1066(1) of the Civil Act
[1] Supreme Court Decision 98Da17800 delivered on September 3, 1999 (Gong1999Ha, 2015) Supreme Court Decision 2004Da35533 Delivered on November 11, 2004, Supreme Court Decision 2005Da57899 Delivered on March 9, 2006 (Gong2006Sang, 586)
Plaintiff 1 and six others (Law Firm Hanl, Attorneys Jeong Young-won et al., Counsel for the plaintiff-appellant)
Korean Bank (Law Firm branch, Attorneys Kim Chang-hee et al., Counsel for the defendant-appellant)
School of Annual Generation of a School Foundation (Attorney Lee Dong-hoon et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2005Na63162, 63179 decided March 7, 2006
All appeals are dismissed. The costs of appeal are assessed against an independent party intervenor.
We examine the grounds of appeal.
1. Articles 1065 through 1070 of the Civil Act clearly define the method of a will and to prevent legal disputes and confusion arising therefrom. Thus, a will contrary to the statutory requirements and methods may not be null and void even if it conforms to the testator’s genuine will (see, e.g., Supreme Court Decisions 98Da17800, Sept. 3, 1999; 2004Da3533, Nov. 11, 2004; 2005Da57899, Mar. 9, 2006). Article 1066(1) of the Civil Act provides that “The will by a certificate of completion of the will must be signed and sealed by the testator.” Thus, the testator’s certificate of completion of the will shall not be effective as a testament’s certificate of completion.
The judgment of the court below which is the same purport is just, and there is no error of law such as misunderstanding legal principles as to the validity of a will by a self-written certificate as claimed in the grounds of appeal, and it cannot be deemed that the provision that excessively limits the freedom of will of Article 1066 (1) of the Civil Act, which requires the seal of the testator, is unconstitutional
2. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Yong-dam (Presiding Justice)