공정증서유언과 공증인법

A Study on the Will Form of Notary Document and the Notary Act

The Civil Law requires a strictness in the way of Will to prevent legal troubles in advance, since Will is a final self expression of a testator and becomes effective legally after his death. So the Civil Law recognized the way of Will as an effective Will only when it meets complicated conditions and procedures which are disciplined by the Civil Law. By the way, the strictness and complication of this way of Will could cause a social happenings as like an evasion or a denial of Will behavior could be a interruption of a testator's private action. This happening would be no problem when the frequency in use of Will is low, but the should consider the counter plan as the frequency becomes increasing and the freedom of Will is recognized as an important value. Therefore, the condition of Will Form of Notary document should be lightened and complemented more of less, a shown in the foreign precedent theory concerning Will Form of Notary Document, and in the Notary Act which is the subsidiary Civil Law. Actual condition among the conditions of Will Form of Notary Document should be applied strictly in the way of Will, and should be invalid when they are against it. When a condition among conditions of Will Form of Notary Document, which doesn't fall under the actual condition, corresponds to an identity, a real Will, and Will Form of testator, the explanation should be lightened of Will notarial system should be operated flexibly to get rid of an uncertainty of testator's real-Will, then the legal effect could be regarded as valid. We could substitute oral by writing, read by interpretation which are in the Civil Law Article 1068 about Will Form of Notary Document. However we should prepare the legal complementary system to discern a certainty of Will existence, the real mind of testator, to protect the freedom of Will who are deaf and dumb, and just in the case of lost, damage, forgery alteration of Will Form. Then essential examination about system and law which are related with Will Form of Notary Document is required rather than lightening of the way of Will.