In cases where a person designated as an executor loses his/her qualification for the executor without the consent of his/her inauguration due to death, disqualification, or any other cause, whether an interested person may request the court to appoint an executor pursuant to Article 1096 of the Civil Act (affirmative)

Articles 1095 and 1096 of the Civil Act

Re-appellant

testator; and

Changwon District Court Order 2006BB27 dated March 13, 2007

The order of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of reappeal are examined.

Article 1095 of the Civil Act applies only to cases where a testator does not designate or entrust the designation of an executor, or where a person entrusted with the designation of an executor withdrawss from his/her office. If, as long as the testator has designated an executor by designation or entrustment of designation, the testator loses his/her qualification for the executor due to death, disqualification, or other reasons regardless of whether the executor has accepted his/her appointment, an interested person may request the court for the appointment of an executor in accordance with Article 1096 of the Civil Act.

The court below erred in the misunderstanding of legal principles as to Articles 1095 and 1096 of the Civil Act, which maintained the first instance court's conclusion which dismissed the claim of this case of the re-appellant and dismissed the appeal of the re-appellant, by taking account of the opinion that the designation of the executor becomes null and void if the person designated as the executor dies without the acceptance of his appointment.

Therefore, without examining the remaining grounds for reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)