유언집행의 기초연구 - 유언집행자 권한과 지위에 관한 역사적⋅비교법적 개관 -

This article aims at an overview of the testamentary executorship from a historical and comparative perspective. As for the Korean Civil Code, there has been a scholarly dispute about its art. 1103 which regards the testamentary executor as an agent of the heir. If this subject is to be approached properly, however, it is necessary to analyse which powers the testamentary executor may exercise so as to fulfill the deceased’s wishes expressed in his or her will. For this, again, the knowledge of the institute’s historical development is useful. Whereas some features of it can also be found in the Roman law, the testamentary executorship originates from the fiduciary donatio mortis causa mediated by the Salmann in the Germanic law. This Germanic custom, combined with the medieval Canon law (especially its insistence on freely disposable portion and disposition ad pias causas), gave rise to the testamentary executorship around the European christian territories. Its contents, however, later went under transformations, as the Roman law was discovered and gained the influences in the continent. Due to these changes, the rules on the testamentary executorship show a number of differences in the modern codifications. In this article, a comparative survey of the executor’s powers in the Prussian, Austrian, French, German, Swiss and Japanese law is given. Against this background, it is finally submitted that the testamentary executor in Korean law should neither be treated as the heir’s nor as the deceased’s agent. Thus the opinion which focuses on the executor’s independent private office (privates Amt) deserves approval. This office, according to the Civil Code, goes for the administration of the inheritance to execute the legacies or other wishes contained in the deceased’s will. The so-called long term executorship (Dauervollstreckung), on the contrary, is in the author’s opinion not allowed. Furthermore, the testamentary executor should be presumed as executor generalis of the whole estate, unless the deceased has ordered otherwise in his or her will. And, as far as the testamentary execution has its effects, the heir is not permitted to administrate the inheritance.