ScholarWorks@숙명여자대학교

초록

In Korean civil law, the testamentary system is grounded in the principle of freedom of legal acts and the institution of private property. Testamentary freedom is protected as a constitutional right, deriving from the constitutional guarantees of property rights and the pursuit of happiness, and thus constitutes part of the testator’s general freedom of action. However, such testamentary freedom has traditionally been restricted by the strict and formalistic requirements of testamentary forms. In other words, since a will is a formal act, any will that fails to comply with the statutory forms prescribed by law is invalid, and the subject matter of a will is also limited to matters defined by law.The Korean Civil Code expressly codifies this formality requirement, and under the current law, five types of wills are recognized: holographic wills, audio-recorded wills, notarized wills, sealed wills, and oral wills (Civil Code Articles 1065, 1066 et seq.). Among these, the audio-recorded will is notable in that it acknowledges a form of testament that anticipates new technologies, and it was an exceptionally innovative provision at the time of enactment, rarely found in comparative legislation. Yet, with the rapid technological developments of modern society, the need to reform the rigid testamentary forms of current law has increasingly been recognized. Moreover, during the COVID-19 pandemic, circumstances arose in which it was impossible to execute wills in the traditional forms, highlighting the inadequacy of the existing system in addressing such crises. Consequently, there has been growing momentum for the introduction of digital wills—that is, electronic wills. Fortunately, Korea’s recognition of audio-recorded wills provides a certain degree of readiness for digital adaptation. Nonetheless, in order to ensure legal certainty and to enhance the substantive utility of testamentary provisions, more specific supplementary legislation is now required. At the same time, the importance of testamentary form in guaranteeing the authenticity of the will and the testator’s testamentary capacity remains unchanged in the digital era. Thus, the central issue in discussions on electronic wills is where to strike the balance between the formal requirements of wills and the flexibility afforded by digitalization. From a comparative law perspective, only a limited number of countries have fully codified electronic wills to date. The United States is a particularly valuable reference, as certain states introduced legislation on electronic wills at an early stage, and in 2019 a federal-level statute was enacted. Most notably, in 2019 the Uniform Law Commission (ULC), which seeks to promote the harmonization of state law in various fields, adopted and promulgated the Uniform Electronic Wills Act (UEWA) as a model statute on electronic wills. This paper therefore examines the concrete provisions of the UEWA, including the definition and permissible forms of electronic wills, and considers the legislative implications that can be drawn for the introduction of electronic wills into Korean law.

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