포괄적 유증론

The Theory of Legacy by Universal Title

The Korean institution of legacy by universal title is of French origin via Japan s universal title legacy, and the French system of legs universel and legs à titre universel has evolved from the fusion of an inheritance designation and universal fideicommissum of Western Roman Empire. Therefore it is regarded as a substitute for heir designation with real right s effect. In other words, a testamentary donee by a universal title can succeed to rights and duties automatically at the time of a testator s death without transfer procedure according to Article 186 and 188 of Korean Civil Act. However, it is argued in recent years that universal title legacy has only a claim s effect, that is to say, a donee by a universal title has to register the given real property or to obtain possession of the bestowed movables for acquiring ownership, and furthermore, some argue that a donee by a universal title does not take over the testator s debt, either. This article is firstly written for supporting the theory of real right s effect from a historical and systematic view, balancing conflicting interests of a testator and his creditors, legal heirs and their creditors, subsequent purchasers from legal heirs and a donee by a universal title as well. The second aim of this paper is to identify the details of the theory of real right s effect, so it deals with some legal issues about shares of inheritance and its approval and renunciation etc. in the case that a donee by a universal title is one of legal heirs.