유언집행자의 법적 지위와 권한에 관한 재검토 - 일본의 상속법 개정을 참조하여

Review of the legal status and authority of the testamentary executor : With reference to the revision of the Japanese Law of succession

With the recent increase in high-net-worth individuals, public interest in inheritance has been growing in Korea. The total annual value of inherited property has quadrupled over the past decade, exceeding 40 trillion KRW. As the value of inherited assets rises, legal disputes among heirs regarding estate distribution have become more frequent. In principle, however, the allocation of inheritance should reflect the intent of the decedent, and the legal institution that enables the realization of such intent is the testamentary system. The testamentary executor plays a crucial role in faithfully implementing the testator’s intentions and fulfilling the relevant legal procedures. Although the Korean Civil Law regulates “Execution of Wills” in Articles 1091 to 1107, it provides insufficient clarity regarding the legal status, authority, and liability of the testamentary executor, leading to interpretative controversies. This study examines the current status and issues of the testamentary executor system under the Korean Civil Law and analyzes Japan’s 2018 Civil Law amendment, which clarified the legal position and authority of testamentary executor. The comparative analysis yields several key implications. First, the provision in Article 1013 of the Korean Civil Law, which defines the testamentary executor as the “representative of the heirs” generates unnecessary interpretive disputes. Legislative clarification — such as deleting this phrase or adopting the “official duty theory” — should be considered. Second, Japan’s amendment, which invalidates acts by heirs that interfere with the executor’s performance while protecting bona fide third parties, offers a useful reference for balancing heirs’ rights with transactional security in future Korean legislation. Third, since the scope of an testamentary executor’s authority varies depending on the content of the will, a uniform statutory definition would be impractical; instead, categorizing wills by type and specifying the testamentary executor’s authority accordingly would be a more realistic approach. Ultimately, the institution of the testamentary executor must evolve within a balanced framework that respects both the realization of the testator’s intent and the protection of heirs’ rights. Japan’s 2018 Civil Law reform provides valuable comparative insight for Korea, suggesting that future legislative reforms should clarify the powers of testamentary executor and establish institutional safeguards to harmonize the interests of all parties involved.