In case where a notarial participant is related to a testator and his relative, if the testator demands it, whether he is disqualified for participation in the notarial act by a notary (affirmative)

Article 1072(1) of the Civil Act provides that, in addition to the list of persons who cannot be a witness to participate in a will, in the case of a will by an authentic document, a disqualified person pursuant to the Notary Public Act shall not be a witness. Meanwhile, Article 33(3) of the Notary Public Act provides that the proviso of Article 33(3) of the Notary Public Act excludes the application of the main provision of Article 33(3) of the same Act in exceptional cases where “where a person who requested a notarial deed requests the participation in a notarial deed” is a relative of a person who is not entitled to become a participant in a notarial deed, even if a notarial participant is related to a testator and his relative, notarial participant shall not be a disqualified person who is a notary public pursuant to the Notary Public Act if he is requested by the testator.

Article 1072(2) of the Civil Act, Article 33(3) of the Notary Public Act

[Defendant-Appellee] Plaintiff 1

Defendant 1 and one other, Counsel for the defendant-appellant-at-law

Daegu District Court Decision 91Na5646 delivered on November 8, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

As to the violation of the rules of evidence:

In light of the records, the court below's decision that recognized the fact that the deceased non-party 1 was the witness of the non-party 2, who was his relative, as a witness in the authentication of the will in the judgment of the deceased non-party 1 based on macroficial evidence, is justified, and it does not seem that there were any unlawful grounds such as the theory of lawsuit. Therefore

As to the misapprehension of legal principles:

Article 1072(1) of the Civil Act provides that, in addition to the list of persons who cannot be a witness to participate in a will, in the case of a will by an authentic document, a disqualified person pursuant to the Notary Public Act shall not be a witness. In the case of a will by an authentic document, Article 1072(2) provides that Article 33(3) of the Notary Public Act shall not be a witness. Meanwhile, Article 33(3) of the Notary Public Act provides that, as one of the persons who cannot be a participant in an authenticated document, the relatives of the person who has requested an notarial deed shall be excluded from the application of the main provision of Article 33(3) of the above Act (Provided, That in the case where a person who requested an notarial deed requests an notarial deed to participate in a notarial deed, even if the participant is related to the testator and his relative, the notarial

The judgment of the court below to the same purport is correct, and the argument that the proviso of Article 33 (3) of the Notary Public Act cannot be applied in the case of a testamentary certificate is not acceptable. The argument is without merit.

Therefore, the appeal is dismissed and all 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-ju (Presiding Justice)