수유자의 선사망(先死亡)으로 인한 유증의 실효와 유언자의 의사 실현- 대습상속과 미국법상 유증실효방지규정(Anti-lapse Statute)의 비교법적 검토 및 입법론적 제언 -

This study This study analyzes the legal vacuum that arises when a devisee predeceases the testator in testamentary succession and presents specific legislative proposals for the Korean Civil Code based on a comparative analysis of the American anti-lapse statute. The current Korean Civil Code restricts the right of representation (daeseup-sangjok) exclusively to intestate succession. Consequently, the testator’s presumed intent is not properly reflected when a devisee predeceases in a will. When a testator devises property to kindred, particularly lineal descendants, it is generally presumed that they intend for the property to pass to the devisee’s descendants should the devisee fail to survive them. However, under the current interpretation of the Civil Code, such intent cannot be realized unless the will explicitly includes a substitute disposition. This creates an irrational imbalance between intestate and testamentary succession, discourages the use of wills, and undermines the coherence of the overall inheritance law system. In the United States, the anti-lapse statute protects the testator’s presumed intent by allowing the issue of certain predeceased kindred devisees to take the gift by representation, provided the testator has not expressed a contrary intent. This study derives implications for the Korean legal system through an in-depth analysis of the application requirements, legal effects, and major precedents found in the Uniform Probate Code (UPC) and the California Probate Code (CPC). Accordingly, this study proposes the introduction of an anti-lapse provision into the Korean Civil Code. The proposed model involves establishing an express provision through amendment (Article 1090-2). The scope of applicable devisees is suggested as either ‘lineal descendants and siblings’ (Option 1) or ‘blood relatives within the fourth degree’ (Option 2). The substitute takers would be limited to the devisee’s issue, and the statute would be superseded if the testator expressed a clear contrary intent or designated an alternative beneficiary. The introduction of this anti-lapse statute would faithfully reflect the testator’s presumed intent and contribute to the activation of the testamentary system. Furthermore, it would resolve the irrational discrimination between intestate and testamentary succession, enhancing the consistency of inheritance law. It would also clarify legal relationships upon a beneficiary’s predecease, thereby increasing predictability and legal stability while preventing unnecessary disputes. Nevertheless, the implementation requires careful consideration, including forming social consensus on the scope of kindred, ensuring harmony with the principles of testamentary interpretation, and establishing consistent judicial standards for survival requirements. It is hoped that the legislative model presented in this study will serve as a cornerstone for institutional improvements that respect the testator’s true intent and strengthen the integrity of inheritance law.