Testament by Holographic Will without Seal

[20-1(A) KCCR 355, 2006Hun-Ba82, March 27, 2008]

In this case, the Constitutional Court declared constitutional the part of 'seal' in Article 1066 Section 1 of the Civil Act that requires the seal in addition to handwritten full text and name as formality of a holographic will, on the ground that as affixing seals in documents has been still widely used as a means to secure the finality of intent and the completeness of a document, the requirement of a seal under the above provision reflects such juristic practice or convention of Korea and thus does not infringe upon the petitioner's property right and general right to freedom of action.

Background of the Case

Article 1066 Section 1 of the Civil Act provides that "in order to make a will by holograph document, a testator must write his own handwriting the whole text, the date, the domicile and his full name, and must affix his seal thereto". Also, as prescribed in Article 1060 of the Civil Act providing that "no will shall take effect unless it is in conformity with the formality stipulated by this Act", a will is valid only when executed pursuant to the formality.

The testator (hereinafter, the "decedent") in this case who had engaged in social welfare service left a holographic will in which he directed that "upon the testator's death, the entire estate of the testator including real estate, money trust and bank deposits shall be donated to the Educational Foundation of ○○ University in the name of Fund for Development of Social Work in Korea". The deed was entirely written in the decedent's handwriting, containing full date, address, name and full text. But no seal was provided.

The heirs of the decedent filed a suit for return of bank deposit against the bank where 12.3 billion Won were deposited in the name of the decedent, claiming that the decedent's estate should be divided into shares based on the agreement of property distribution and distributed respectively to the heirs, because the holographic will in this case was invalid as it was defectively executed due to omission of the testator's seal. The heirs also argued that since there was no

evidence of mutual exchange of intentions required for a gift causa mortis (gift taking effect upon death) between the decedent and ○○ University, the decedent's estate could not be deemed as being be quested or donated to Yonsei University.

In return, ○○ University (hereinafter, the "petitioner") sought to intervene as a third party by filing an application for intervention, asking the court to confirm that it had the right to request to return the money deposited in the bank saving account and the right to request to withdraw the deposit regarding the bank saving account. The application for intervention, however, was refused. Upon the court's refusal, the petitioner appealed to the Seoul High Court, but the appeal was also denied. The petitioner, then, appealed to the Supreme Court and while the case was pending, filed a motion to request for constitutional review of statute in relation to the part of "seal" provided as one of the requirements of due execution of a holographic will in Article 1066 of the Civil Act (hereinafter, the "Instant Provision") to the same court (2006KaGi129). The Supreme Court, however, decided to deny both the appeal and the motion. The petitioner after being notified this Supreme Court's decision filed a constitutional complaint to the Constitutional Court on October 2, 2006.

Summary of Decision

1. Majority Opinion

The legislative purposes of the Instant Provision are to clarify a testator's real testamentary intent after his/her death and to secure legal stability or certainty by preventing a will contest or confusion between the interested parties regarding disposition of the testator's estate, all of which are legitimate. The legislators necessitated rigid formality requirements in drawing up a will in order to attain the aforementioned legislative purposes. And especially in case of a holographic will, the simplest way to draw up a will with relatively higher danger of forgery or alteration due to no requirement of a witness or third party involvement, it is safe to say that strictly requiring formality itself is an appropriate means to achieve the

legislative purposes.

Also, given the long history of juristic practice or convention of affixing seals in legal documents in some Asian countries like Korea, that requiring both handwritten name and a seal simultaneously does not seem redundant because such formality in the Instant Provision was provided after due consideration of the fact that handwritten names only may not be enough to fulfill the legislative purposes to prove the testator's ultimate intent regarding disposition of his/her estate and to guarantee legal stability in the process of execution of will.

Moreover, a testator may easily and conveniently replace the seal requirement by affixing a thumbprint instead. The Civil Act also provides various types of will to be freely chosen by a testator. Also, a person may achieve what he/she wishes for disposition of property by entering into an agreement of gift causa mortis with the intended donee, which falls into a kind of contract that can be formed by only exchanging mutual assent, without requiring specific formality. Therefore, the seal requirement does not violate the principle against excessive restriction and strikes a balance between legal interests. For the foregoing reasons, the limitations stipulated in the Instant Provision on the testator's property right and right to freedom of general action do not amount to the violation of Article 37 Section 2 of the Constitution.

2. Dissenting Opinion of Justice Kim Jong-dae

Today, it is highly probable that one's seal can be unexpectedly used or forged by other people unknown to the owner of the seal, which can make the seal requirement inappropriate for confirmation of the testator's final intent. As a result, in many legal transactions, the seal requirement has been abolished and replaced by a signature. As the purposes of seal requirement are easily attained by the handwritten full text and name, requiring a seal is unnecessary, redundant formality, violating the rule of least restrictive means in limiting the testator's freedom of general action guaranteed by Article 10 of the Constitution and also violating the principle of balance between legal

interests. For the foregoing reasons, the Instant Provision should be decided unconstitutional to solve its innate problem.

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Party

Petitioner

Educational Foundation of ○○ University

Representative: Yoon Yang Kim Shin & You (Whawoo)

Attorney in Charge: Yang Sam-seung and one other

Underlying case

Supreme Court, 2006Da25103 (the original suit) Return of bankdeposit, 2006Da25110 (application for intervention) Bank deposit

Holding

The part of "seal" of Article 1066 Section 1 (Act. No. 471, enacted on February 22, 1958) of the Civil Act is not in violation of the Constitution.

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the case

(1)Testator Kim ○-cho (hereinafter, the "decedent") who had engaged in social welfare service died on November 5, 2005. Since the decedent did not leave any lineal ascendants or descendants, decedent's seven nieces including Kim ○-chul became the heirs of the decedent's estate. The decedent's estate included bank deposits such as a savings account in ○○ bank which would be mature soon (hereinafter, the "○○ bank saving account") and a savings account in

△△ bank which could not be closed before maturity (hereinafter, the "△△ bank savings account"), where 12,228,294,463 Won were deposited together in total. It is proved that the decedent had been furnished with data which explained types of wills and a way to draft a valid holographic will in detail by an employee of △△ bank.

Kim ○-chul, the decedent's niece, found an envelope marked the decedent's name kept in a safe-deposit box at ○○ branch, △△ bank and a will [See attachment] in it. The document was entirely written in the testator's handwriting, containing full date, address, name and full text of direction that 'upon the testator's death, the entire estate of the testator including real estate, money trust and bank deposits shall be donated to the Educational Foundation of ○○ University (hereinafter, the "petitioner") in the name of Fund for Development of Social Work in Korea'. But, no seal was provided by the testator in the will.

(2)On November 24, 2003, the heirs of the decedent filed a suit for return of bank deposit to the Seoul Central District Court (2003 KaHap 86119) against △△ bank Co., claiming that the decedent's estate should be divided into shares based on the agreement of property distribution and distributed respectively to the heirs, because the holographic will in this case was invalid as it was defectively executed due to omission of the testator's seal. The heirs also argued that since there was no evidence of mutual exchange of intentions required for a gift causa mortis (gift taking effect upon death) between the decedent and the petitioner, the decedent's estate could not be deemed as being bequested or donated to the petitioner. In return, the petitioner sought to intervene as a third party by filing an application for intervention to the same court (2003KaHap89828), asking the court to confirm that the complainant had the right to request to return the money deposited in the △△ bank saving account and the right to request to withdraw the court deposit regarding the △△ bank saving account. In the application, the complainant claimed that the decedent's entire estate was 1) bequested to the petitioner on the grounds that the holographic will was valid as the decedent's intention could be verified by the signature provided at the end of the will or 2) donated to the petitioner on the grounds that there was a

contract of gift causa mortis between the petitioner and the decedent at the time of making the document. The application for third party intervention, however, was refused by the Seoul District Court on July 5, 2005.

(3)Upon the court's refusal, the complainant appealed to the Seoul High Court, but the appeal was also denied (Seoul High Court Decision 2005Na63162, 63179 decided on March 7, 2006). The petitioner, then, appealed to the Supreme Court and while the case was pending, filed a motion to request for a constitutional review of statute in relation to the part of "seal" provided as one of the requirements of due execution of a holographic will in Article 1066 of the Civil Act to the same court (2006KaGi129). The Supreme Court, however, decided to deny both the appeal and the motion on September 8, 2006. The petitioner was notified of the decision of denying on September 13, 2006 and subsequently filed this constitutional complaint to the Constitutional Court on October 2, 2006.

B. Subject matter of review

The subject matter of this case is constitutionality of the part of "seal" in Article 1066 Section 1 of the Civil Act (hereinafter, the "Instant Provision"). The text of the Instant Provision and the related provision is as follows:

Article 1066 (Will by Holograph Document) (1) In order to make a will by holograph document, the testator shall write with his own handwriting the whole text, the date, the domicile and his full name, and must affix his seal thereto.

2. Reason for Supreme Court's Denying Motion to Request and Argumentsof Petitioner and Related Bodies

(intentionally omitted)

3. Review on Justiciability

A.The Instant Provision's relevance of precondition for the judgment ofthe underlying case

In case of a constitutional complaint under Article 68 Section 2 of the Constitutional Court Act, relevance of precondition of the provision at issue in the underlying case pending at the ordinary court is required. Relevance of precondition refers to the requirement that the constitutionality of the challenged statute be a precondition for the disposition of the underlying case. And the decision to be rendered by the Constitutional Court concerning whether the statute in question is constitutional or not may alter the judgment of the underlying case or change the subject matter or the legal effect of the underlying case. (7-2 KCCR 48, 58, 93Hun-Ba46, July 21, 1995)

If the Instant Provision is decided to be unconstitutional and consequently becomes ineffective, the will in this case may be deemed to be valid as satisfying the formality requirements, and the rest of the decedent's estate excluding the portion to be compulsorily inherited to the heirs by law may possibly be donated to the petitioner, resulting in partial upholding of the constitutional complaint. Since the decision regarding constitutionality of the statue may alter the holding of the underlying case, the constitutional complaint passes the requirement that the Instant Provision be a precondition for the disposition of the underlying case.

B. Review on merits

(1) Formality of will

A will is validly executed only when all the requisite formalities are observed. A will takes effect only upon the death of the testator and is executed unilaterally without the consent of the beneficiaries designated in the will. Matters that can be provided in a will are limited by laws: 1) regarding family relations, there are denial of paternity by will (Article 850 of the Civil Act), affiliation of child by will (Article 859 of the Civil Act), designation of a guardian by will (Article 931 of the Civil Act) and designation of family council members by will (Article 962 of the Civil Act); 2) regarding

disposition of estate, there are bequests (Article 1074 and Article 1090 of the Civil Act), property contribution for establishment of a foundation by will (Article 47 of the Civil Act) and creation of trust by will (Article 2 of Trust Act); and3) regarding inheritance, there are determination of method of division of inherited property, entrustment of such division, or forbidding division by will (Article 1012 of the Civil Act) and designation of an executor by will (Article 1093 of the Civil Act).

As prescribed in Article 1060 of the Civil Act providing that "no will shall take effect unless it is in conformity with the formality stipulated by this Act", a will is valid only when executed pursuant to the formality. Such formal requisites for execution of will not only were recognized by traditional legal systems such as Roman law and German law, but also have been generally accepted as statutory requirements in many countries in modern jurisprudence.

Turning to our attention to the local practice, Korean legal history shows that in the Joseon Dynasty, most of wills were executed following certain formalities in the form of a written deed called "Yu-seo" which required a seal or a signature by the testator to be valid. During the period of the Japanese forced occupation of Korea, however, the formality requirements were abolished. According to the Decree on Civil Affairs of Joseon (hereinafter, the "Decree") enacted during the aforementioned period, as family law was a product mostly formed on the basis of unique tradition and social convention of a country, Japanese Civil Act pertaining to family relation and inheritance could not be applied in Joseon, resulting in execution of wills being the matter regulated by Korean customary law (see Article 11 of the Decree). The Decree observed that customary practice of will execution in Joseon required no particular formality, permitting both written and nuncupative forms of deed. But, the current Korean Civil Act discarded the practice set by the Decree and came up with formality for being valid wills and provided for five different forms of valid wills such as a holographic will, sound recording, notarial and secrete documents and instrument of dictation (Article 1065 of the Civil Act).

The Supreme Court's precedents have coherently demonstrated that the legislative purposes of formality of wills are to clarity the

testator's intention and to prevent legal disputes and confusion therefrom (Supreme Court Decision 98Da17800 Decided on September 3, 1999; Supreme Court Decision 2005Da57899 Decided on March 9, 2006). Also, we understand that making the testator execute a will more cautiously and accurately after carefully considering all the situations is another legislative purpose for the strict formality requirements under the Civil Act.

As seen above, a will deviating from the legally required formality becomes invalid pursuant to Article 1060 of the Civil Act. The Supreme Court precedents also indicate that a will which does not conform to the formality should be regarded as ineffective although the invalid will truly reflects the testator's real intention (Supreme Court Decision 2004Da35533 decided on November 11, 2004; Supreme Court Decision 2005Da57899 decided on March 9, 2006; Supreme Court Decision 2006Da25103, 25110 decided on September 8, 2006).

(2) Formality of holographic will

According to Article 1066 Section 1 of the Civil Act, "in order to make a will by holograph document, the testator must write with his own handwriting the whole text, the date, the domicile and his full name, and must affix his seal thereto". Handwritten wills have merits in terms of its convenience in drawing up and the superb capacity to keep contents of wills in secret. But there are still demerits that those who are illiterate cannot execute a will by this method and that high possibility of forgery or alteration may bring about difficulty in proving existence of an original will or the testator's real intention.

Particularly, since a seal in a handwritten will implies that the will is not a draft but a conclusive deed, a handwritten will without seal cannot be deeded as valid. The Supreme Court precedent also shows that a handwritten will without the testator's seal has no effect as a valid holographic will as prescribed in Article 1066 Section 1 of the Civil Act (Supreme Court Decision 2006Da25103, 25110 decided on September 8, 2006).

(A) Handwriting of full text

Since a person's handwriting can represent the writer's distinctive traits, a testator should draw up a will in his/her own handwriting in order to prevent forgery or alteration of the will. Also, the handwritten text by the testator can prove that the testator is the very person who draws up the will of his/her own volition. The testator may also be able to organize his/her own ultimate intention regarding distribution of property throughout the process of writing a will in person.

(B) Handwriting of full date

It is required for a testator to handwrite the full date of execution of his/her will including the day, month and year because whenever there is a will contest, the time of will execution is critical to decide validness of a will: it must be proved that testamentary capacity of the testator had existed at the time of the will execution (Article 1061 of the Civil Act), and when there are multiple documents, "if a prior will is inconsistent with a subsequent will or if an act inter vivos, after a will has been made, is inconsistent with such will, the prior will shall be deemed to have been withdrawn with respect to the parts in which they are inconsistent" (Article 1109 of the Civil Act).

(C) Handwriting of address

This is required to clarify the testator's identity.

(D) Signature

This requirement is to prove that the one who draws up the will and the one who is marked as the testator in the will are identical, which may show that the testator's intention is truly and integrally reflected in the will.

(E) Seal

This requirement is to prove that the will is drawn up by the testator himself/herself on the basis of his/her true volition. Moreover,

the seal requirement also confirms finality of the testator's intention, meaning that the will is not a mere draft but a conclusive deed for disposition of the testator's property. A precedent shows that not only a personal seal stamp but also a thumbprint can fulfill the seal requirement (see Supreme Court Decision 97Da38510 Decided on June 12, 1998).

(F) Obliteration and alteration

When there is obliteration, insertion or alteration to the handwritten document, it should be done by the testator's handwriting and a seal should be affixed thereto.

(3) Legislation in other countries

A holographic will had not been legislated in the modern civil law system until the nineteenth century. France and Austria were the first two countries that adopted a holographic will in their respective Civil Code, followed by Germany and Swiss. There is another example of Civil Code that requires a seal in addition to signature for a valid holographic will, such as that of Japan.

(A) Japan

Article 968 of the Civil Code of Japan stipulates that "to make a will by holograph document, the testator must write the entire text, the date, and his/her name in his/her own hand and affix his/her seal", which is basically the same as that required by the Korean Civil Act, except for absence of handwritten address requirement. As there has been legal practice in the country that in drawing up important documents, affixing a seal as well as a signature may complete the execution of such documents, the formal requisite of a seal affixed to a holographic will was provided to confirm the identity of the testator, finality of the testator's intention and conclusiveness of the document.

(B) Taiwan

Article 1890 of the Civil Code of Taiwan provides that to be a valid holographic will, the testator shall handwrite the entire text and full date, and provide a signature written by himself/herself. In case of obliteration, insertion or alteration, the testator shall indicate the place where such changes take place, write the numbers of characters that have been changed or deleted and provide his/her own signature there.

(C) People's Republic of China

Article 17 of the Inheritance Law stipulates that a holographic will shall be written by the testator in his/her own handwriting, providing full date and signature as well.

(D) Germany

Article 2247 Section 1 of the German Civil Code requires a main text and a signature in handwriting. Article 2247 Section 2 requires providing the day, month, year and the place of execution in handwriting. But, if there is a will contest regarding defects in the parts of date and place, this country may grant relief if the defects can be cured by other ways.

(E) Swiss, Austria

Article 505 Section 1 of the Civil Code of Swiss requires the testator to write a main text, the year, month and day of execution in his/her own handwriting and to sign on the document. Article 578 of the Civil Code of Austria only requires a main text and a signature be handwritten by the testator. But it also mentions that although the full date and the place of execution are not required, they would be useful in preventing future disputes.

(F) United Kingdom

Article 9 of the UK Wills Act provides that "no will shall be valid unless (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears

that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time".

(G) France

According to Article 970 of the French Civil Code, no handwritten will shall be valid unless it is written, dated and signed by the testator.

(H) United States

Holographic wills have been mainly accepted by the common law system. In the United States, state statutes are patterned after either the Louisiana statute which follows the continental law system or the Virginia statute. The so-called Louisianatype states create and define a holographic will as a distinct kind of will, whereas the so-called Virginiatype states do not consider a holographic will as a new category of will; rather, they set forth the general requirements for wills, and then dispenses with the requirements of attestation if the instrument is entirely handwritten by the testator. The Uniform Probate Code adopted the Louisiana type definition of a holographic will and currently about 25 states adopt the Louisiana type.

(4) Constitutionality of the Instant Provision

(A) Restriction on basic rights

1) As disposition of private property and its inheritance are under the realm of protection of the property right guaranteed in the Constitution, the freedom of disposition by will, or the legal permission to the testator to freely dispose of his/her property during his/her lifetime, as well as the disposition of properties by gift is also constitutionally protected (see 1 KCCR 357, 368, 88Hun-Ka13, December 22, 1989; 9-2 KCCR 762, 774, 96Hun-Ka19, December 24, 1997).

A holographic will that fails to comply with all the required

formality will not be acknowledged as valid even though the testator's true testamentary intent regarding the way to dispose of his/her property is exactly same as described in the holographic will. However, since the testator's true intent may not be honored and the testator's discretion to freely dispose of his/her property is limited due to these rigid formality requirements, it can be said that the testator's property right guaranteed in Article 23 Section 1 of the Constitution may possibly be infringed.

2) Besidesjus disponendiof one's own property, the freedom of disposition by will also means realization of self autonomy. Therefore, the decisions on whether to make a will, how to make a will and what to be included in the will basically are at individual's own intention. In this regard, the Instant Provision which provides rigid formality in drawing up a holographic will may limit the testator's right to freedom of general action derived from the right to pursue happiness stipulated in Article 10 of the Constitution.

(B) Principle against excessive restriction

1) Since the right of inheritance is a kind of property rights, the inheritance method and its contents should be decided by the legislature. But in deciding the method and contents, if the legislature goes beyond the boundary of its entitled discretionary power to limit the basic rights guaranteed in Article 37 Section 2 of the Constitution, such laws or regulations are in violation of the Constitution. Article 37 Section 2 prescribes for basic principles to be observed by the State when enacting a law which may limit the people's basic rights: the freedoms and rights of citizens may be restricted by the statute only when necessary for national security, maintenance of law and order or public welfare. Even when such restrictions are imposed, no essential aspect of the citizen's freedoms or rights shall be infringed. Therefore, when a law limiting the basic rights is enacted, such a law should be furnished with legitimate legislative purposes, appropriate means to achieve the purposes, the least restrictive means, and balance between the public interest to be protected and the basic rights to be infringed by the law. Act or provisions of act that do not comply

with the requirements are deemed to violate the Constitution as going beyond the boundary of the legislative discretion (See 10-2 KCCR 339, 356-357, 96Hun-Ka22, et al., August 27, 1998; 16-2(B) KCCR 16-2(B), 76, 81, 2003Hun-Ka13, October 28, 2004).

As reviewed above, the Instant Provision placed limitation on the testator's property right and the general freedom of action. Therefore, we need to assess whether the Instant Provision has done so within the constitutionally approved boundary or not.

2) The legislative purposes of the Instant Provision are to clarify the real testamentary intent of the testator after his/her death and to secure legal stability or certainty by preventing a will contest or confusion between the interested parties regarding disposition of the testator's estate, all of which are legitimate.

The legislators found it necessary to provide rigid formality requirements in drawing up a will in order to attain the aforementioned legislative purposes. And especially in case of a holographic will, which is the simplest way to draw up a will but has relatively higher danger of forgery or alteration due to no requirement of a witness or third party involvement, it is safe to say that strictly requiring formality itself is an appropriate means to achieve the legislative purposes.

3) However, there can be a problem relating to the requirement of a seal in addition to handwritten full text and name because a defect in the seal requirement may render the entire will void pursuant to Article 1060 of the Civil Act, which may excessively limit the testator's freedom to disposition by will, violating the principle against excessive restriction.

In some Asian countries like Korea, there has long been a juristic practice or convention of affixing seals in legal documents. In a private document, affixing a seal customarily functions as evidence of the document being drawn up by the writer himself/herself and as confirmation of the true intent of the writer, especially the finality of the testamentary intent and completion of the document.

Reflecting this practice, Article 358 of the Civil Procedure Act stipulates that "a private document shall be presumed to be authentic

when it bears the signature, seal or thumbprint of the principal or his representative". Also the Personal Seal Impression Act introduced the system of certificate of personal seal impression or Ingam based on the long customary practice of affixing a seal to prove the identities of the contracting parties. Recently, due to the rapid development of computer technology, there have been discussions to reform the system which frequently yields public discontent for its inconvenience. But it has yet to be abolished for lack of any proper substitute. On the other hand, a handwritten name or signature has been mostly used in western countries in order to prove identity of the writer of documents. In those countries where the practice of affixing a seal does not exist, a system to verify the identity of the writer of document is adopted. In the system, once individuals register their handwritten signatures at the national institutions, those signatures are electronically scanned and an engraved embosser seal is stamped to the document to be authenticated.

Although it is true that a signature in handwriting has widely gained ground on proving identity in legal transactions in our country, the petitioner's argument that the practice of affixing a seal is completely replaced by the practice of using a signature did not seem to have sufficient evidence. Nor, given the conventional practice in business transaction, has a signature been used to prove the writer's ultimate intent or conclusiveness of the document.

We think that requiring both a handwritten name and a seal simultaneously does not seem redundant because such formality in the Instant Provision was provided after due consideration of the fact that handwritten names only may not be enough to fulfill the legislative purposes to prove the testator's ultimate intent regarding disposition of his/her estate and to guarantee legal stability in the process of execution of will.

Moreover, besides holographic wills, there are also cases of private documents written by private citizens requiring both a signature and a seal as the documents are to be submitted to the government offices, for which the authenticity of documents is strongly required. For example, a list of factory foundation to be submitted for the registration for preservation of ownership on a factory foundation under Article 39 Section 2 of the Factory Mortgage Act and the

application form for registering the right to manage the toll road required to be submitted under the Article 13 Section 2 of the Toll Road Act and Article 27 of the Enforcement Decree on Registration of the Management Right are all considered as private documents written by private citizens who want to register their ownership or file an application. But signing and sealing are still required for those documents by law, too.

Also, the seal requirement prescribed in the Instant Provision cannot be deem to be too difficult or burdensome for the testator to carry out because the Supreme Court precedent articulates that a seal in a holographic will includes not only a personal seal stamp but also a thumbprint (See Supreme Court Decision 97Da38510 decided on June 12, 1998). Therefore, the testator may easily and conveniently replace the seal requirement by affixing a thumbprint instead.

The testator may freely choose any type of will as he/she wants: besides a holographic will, the Civil Act also provides for other types of valid wills such as sound recording, notarial and secret documents and instrument of dictation.

Even when the testator is under certain circumstances where he/she cannot comply with any of the formal requirements, he/she still can carry through his/her testamentary intent regarding disposition of estate by making a gift causa mortis (gift taking effect on death) pursuant to Article 562 of the Civil Act. Although Article 562 of the Civil Act prescribes that the provisions relating to a testamentary gifts shall apply mutatis mutandis to a contract of gift effective upon the death, formalities for a valid testamentary gift under Article 1065 and Article 1072 of the Civil Act do not apply to the gift causa mortis because the former presupposes unilateral action while the latter is bilateral contract (See Supreme Court Decision 94Da37714, 37721, Decided on April 12, 1996; Supreme Court Decision 2000Da66430, Decided on September 14, 2001). Therefore, a person may achieve what he/she wishes for disposition of property by entering into an agreement of gift causa mortis with the intended donee, which falls into a kind of contract that is formed only by exchanging mutual assent, without requiring specific formality.

In case of a foreign testator who is trying to execute a will in Korea, the foreign testator is allowed to provide his/her signature only,

instead of both a signature and a seal as prescribed in the Instant Provision because the Foreigners' Signature and Seal Act modified the formality by permitting a foreigner, who is a national of a country where the system requiring both a signature and a seal in execution of will does not exist, to use only his/her signature in place of them.

The petitioner tries to convince us of the alleged unconstitutionality of the Instant Provision by suggesting that some other statutory provisions allow replacement of a seal with a signature. But we consider this argument inappropriate here in this case because those statutory provisions with which the petitioner compared the Instant Provision have different legislative purposes. For example, regarding an issuance of a bill or endorsement, the related Articles allow that anyone dealing with activities pertaining to bills may provide either a seal or a signature (Article 1 Section 8, Article 13 and Article 75 Section 7) of the Bills of Exchange and Promissory Notes Act). But this is based on a different legislative purpose: bills are mainly used in business transaction for which simple and speedy procedures are specifically required, which is quite remote from the purpose of formality in the execution of will to secure the legal stability. Also, as another example suggested by the complainant, allowing credit card users to sign their credit card receipts dispensing with the use of seals has totally different legislative purpose from the execution of will thatrequires a seal to prove the testator's final intent and the conclusivenessof the document: as Article 19 Section 2 of the Specialized Credit Financial Business Act prescribes that "for each credit card transaction, the credit card merchant shall verify whether the credit card is being properly used by the principal", the purpose of requiring a signature in credit card transaction is to verify the identity of a credit card holder and to make sure whether the credit card is correctly used by the card holder himself/herself. And a comparison between the signature in the back of the credit card and the signature in their credit card receipt is required by the contract agreement with each credit card company for verifying identity.

In sum, the seal requirement should not be considered violating the principle against excessive restriction because a handwritten full text and a signature only are not enough to fulfill the legislative purposes of the Instant Provision. Therefore, it is legitimate to call for the seal

requirement.

4) The purpose of the rigid formality for execution of a holographic will prescribed in the Instant Provision is to achieve public interests of keeping the inheritance system intact on which the private property system is based and of preventing possible legal conflicts or confusion that could be ensued by demise of the testator. Comparing with the private interest restricted by the formal requirements of the Instant Provision, the public interests to be realized by the formality are bigger. Therefore, the formality strikes a balance between legal interests.

For the foregoing reasons, the limitations stipulated in the Instant Provision on the testator's property right guaranteed by Article 23 of the Constitution and the testator's general right to freedom of action guaranteed by Article 10 of the Constitution do not amount to the violation of Article 37 Section 2 of the Constitution.

4. Conclusion

Therefore, the Instant Provision does not violate the Constitution, thus we issue the opinion prescribed in the Holding by a unanimous vote except Justice Kim Jong-dae who provides a dissenting opinion.

5. Dissenting Opinion by Justice Kim Jong-dae

I think the Instant Provision is unconstitutional for the following reasons:

It seems proper in itself to require rigid formality as a method to prevent will contests or confusion between the interested parties because such formality seems relevant to achieve the legislative purposes of proving the testator's real intent regarding distribution of his/her estate and securing legal stability in the process of inheritance. However, considering the facts that a will is the final expression about the testator's testamentary intent before his/her death and rigid formal requirements for execution of will put limitation on the testator's general right to freedom of action, the legislators should not require formality more than necessary to verify the testator's real intent

regarding disposition of his/her estate. If such formality goes beyond this boundary, such redundancy would amount to violate the principle against excessive restriction on the basic rights. According to the majority opinion, the formal requirements in this case satisfy the appropriateness of means to achieve the legislative purposes and the least restrictive means. However, the role of a seal, as opposed to handwriting, has been drastically losing its significance in terms of certifying the testator's intent. Moreover, it is highly probable that one's seal can be unexpectedly used or forged by other people unknown to the owner of the seal, and if it is the case, fulfillment of the seal requirement cannot properly confirm the testator's final intent. As a result, in many legal transactions, the seal requirement has been abolished and replaced by a signature. Currently, it is generally recognized that not only a seal itself has forfeited its primacy over signature, but also requiring both a seal and a signature has become a redundant formality for proving the testator's final intent.

Also, given the fact that there is no requirement in the Instant Provision that a testator's seal be at the end of the will (Article 1066 Section 1) and that the testator may at any time revoke the will by a subsequent will or by an act during one's life and may not waive the right to revoke his/her will, it is clear that the testator, even after executing a valid will satisfying all requirements of Article 1066 of theAct, may revoke or modify his/her intent, meaning that a seal itself should neither secure the testator's ultimate intent nor finalize the document. Rather, a seal is only an additional and supplementary requirement to confirm the testator's intent already shown by the handwritten full text and signature.

After all, the purposes of a seal requirement are to verify whether the will has been actually written by the one whose name appears on the will as the testator and to prove the testator's real intent regarding disposition of his/her estate. And those purposes are easily attained by the handwritten full text and name. Therefore, requiring a seal is unnecessary, redundant formality, violating the principle against excessive restriction as limiting the testator's general freedom of action guaranteed by Article 10 of the Constitution.

While the public interests to prevent possible will contests and confusion after the death of the testator and to protect the inheritance

system as a basis for the private property system can be sufficiently accomplished by the requirements of handwritten full text and signature, the seal requirement infringes the testator's right by invalidating a will if not observed, leaving the testator's true intent absolutely impossible to be fulfilled, thereby causing a serious imbalance between the public interest to be protected and the private right to be infringed. This is a violation of the principle of balance between legal interests.

As reviewed above, the Instant Provision violates the principle against excessive restriction presented in Article 37 Section 2 of the Constitution. Since the Instant Provision itself is unconstitutional, and such unconstitutionality cannot be cured simply by allowing the seal requirement to be replaced by a thumbprint as shown in the majority opinion with the reference to the case precedent of the Supreme Court. For the foregoing reasons, the Instant Provision should be decided unconstitutional to solve its innate problem.

Justices Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan

[Attachment]omitted