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家族法硏究 第36卷 2號.jpg
KCI등재 학술저널

피상속인의 의사해석과 오표시 무해의 원칙

서울고등법원 2022. 5. 11. 선고 2021나2028110 판결을 중심으로

The decedent had the intention to make a contribution to the corporation by donating the building to the corporation and receiving the corporation’s stock. However, he misunderstood such a legal act as an investment in kind and indicated in the document that he would make an investment in kind. If so, this means that the decedent caused an error in the meaning or content of the indication. And if the other party to the gift also made the same mistake as the decedent, it is reasonable to interpret it as a gift with a burden as understood equally by both parties, not as indicated in the document. This is the principle of ‘falsa demonstratio non nocet’. However, in relation to the principle of interpretation of legal acts, our courts tend to interpret as indicated in the document even in cases where the principle of ‘falsa demonstratio non nocet’ is applied. It is unreasonable to say that the true intention of the person who expressed the intention cannot be realized because of this. Moreover, if the person who expressed his/her intention dies and is unable to perform a new legal act, the injustice becomes even greater. The intention left by the decedent should be interpreted in a way that can be realized as much as possible, not in a way that is not feasible. It is necessary to actively change the attitude of the judiciary for the realization of the decedent's will.

Ⅰ. 문제제기

Ⅱ. 사 례

Ⅲ. 오표시 무해의 원칙

Ⅳ. 이 사건 사례의 경우

Ⅴ. 결 론

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