사인증여(死因贈與)의 철회 - 대상판결: 대법원 2022. 7. 28. 선고 2017다245330 판결 -

Abstract

Although Korean Civil Code's article 562 notes that "The provisions on legacy shall apply mutatis mutandis to a gift that becomes effective due to the death of a donor." under the title of mortis causa, there are no specific regulations on which codes get mutatis mutandis applied. Thus this part entirely depends on interpretation, and there has been a theoretical dispute over whether article 1108 regarding arbitrary withdrawal of a will without the consent of the legatee can be applied mutatis mutandis to mortis causa. The dominant opinion is that mortis causa is a contract and must not be allowed to applied mutatis mutandis with the regulations on withdrawal of legacy. On the other hand, judicial precedents have not taken a clear position on this; however, contrary to the dominant view, the civil code's article 1108 on the withdrawal of will approved the mutatis mutandis application theoretically for the first time in the target judgment. Considering the intent of mortis causa and legacy, it is hard to acknowledge the difference between the two in that the donor's final intention regarding the attribution of one's property must be respected. Nevertheless, dominant view in Korea has been that the regulations on mortis causa should not be applied mutatis mutandis with article 1108 according to the legislator's decision in the section of the contract of legacy. However, considering the purpose of the enactment, the reason why regulations on mortis causa were placed in the section of the contract was that even if it was concluded in the form of a gift contract, it corresponds to a legacy and should be put as a care provision in order to show difference from legacy. If so, the remaining argument is the precedence in the comparative sentence between the beneficiary's right to expect and the donor's respect for the donor's final intention, which is judged to be more respectful of the donor's final intention, considering that the legacy and the mortis causa have the same purpose. Considering these points, it was very reasonable to haved judged that the target judgment applied mutatis mutandis with article 1108 on the withdrawal of the legacy is allowed to withdraw mortis causa unless there were special circumstances.