사인증여의 특수성 -대판 2023. 9. 27. 2022다302237과 관련하여-

The Supreme Court's 2022Da302237 decision (judgment subject to study), pronounced on September 27, 2023, deals with the issue of whether video recording that does not meet the statutory requirements for a testamentary document is recognized as a gift causa mortis, that is, contract. One of the heirs filmed the contents of the deceased's will (speaking in the form of a will) on video using a laptop. The court of first instance said that there was insufficient evidence to recognize the gift causa mortis, and the court of second instance ruled that even if the will was invalid, it could be recognized as the gift causa mortis, contract without formality. In the judgment on appeal, it was held that the equity among the heirs, which would have been recognized if the testator's will or will had been valid, could act as a passive requirement in recognizing the effect as a gift causa mortis deed, and in the case of the subject judgment, the effect as a gift causa mortis deed contract was not recognized. . In this study, I studied the positive and negative aspects of the subject judgment. In conclusion, the my arguments in this study are summarized as follows. ①Although the bequest regulations regarding the strict method cannot be applied to a contract of testamentary donation, the ideology of the will system, which requires respect for the purpose of the will system and the testator's true intentions, must be applied mutatis mutandis. ②In judging the probative power of evidence to recognize the testator's true intention, not free proof, but a high probative power equivalent to the method of the will must be applied. ③ In the case of the subject judgment, the decedent's expression of intention is a single expression of intention with an indivisible unity that involves inheritance for all heirs, so some of the heirs separated only the part that was advantageous to them and claimed only that part as a contract of gift causa mortis. Doing so is against the legal principles of interpretation of expressions of intent and against the principles of good faith. ④ In order to recognize the validity of an invalid expression of intention as a testamentary gift as a gift causa mortis, a virtual intention requirement is necessary to convert the invalid act into a valid act, and the legal requirements of partial invalidity must also be met. ⑤ Videos are a new type of evidence different from writing or recordings, so a new theory of interpretation or legislation is needed for them. ⑥ Although it is not appropriate to require the statutory form of a will as a matter of legislation, just as a contract for guarantee liability stipulates that the expression of intention to assume guarantee debt be made in writing (Article 428-2), if that level of formality is provided, it may be in writing. It can be interpreted as a gift by.