독일 민법상 사인처분에 있어서 부관에 관한 연구

If a testator makes the testamentary donee by a universal title to a legatee on the condition that the legatee marries a spouse who is qualified as doctor, is this testament valid? If it is valid, Art. 1073, Para. 2 of the Korea Civil Act will be the legal ground, and if it is not, the violation of Article 103 of the Korea Civil Act will be. However, unlike Article 1073, Article 103 of the Korea Civil Act does not provide clear and specific materials. Without elaboration on “good morals and other social order” in Article 103 of the Korea Civil Code, we could not conclude whether testator’s will be valid or invalid. In Germany, two inheritance disputes about the property of noble families occurred in the 21st century. These cases was related to the marriage aforementioned. The testator in the Prussian aristocratic family and the Leiningen aristocratic family entered into an inherit contract with the heirs including a clause regarding so-called ‘with equal family marriage (Ebenbürtigkeit)’. According to the clause the heir could lose his right to inheritance unless heir marries a woman from the same family as the one to which the decedent belongs. The German Federal Supreme Court and the Federal Constitutional Court explored various legal principles to making materialization of Article 138 of the German Civil Code. They balanced ultimately conflicting interests that the freedom of testamentary right of the decedent and the freedom of marriage right of the heir by means of the indirect effect theory of basic human rights. This paper introduces the events that occurred in Germany and focuses on the theories and legal principles pursued by German precedents and civil law.