死因贈與在臺灣社會之實態與功能

The Function and Meaning of Gift Causa Mortis in Taiwan

死因贈與在臺灣的民法中並無明文規定， 雖學說普遍肯定其存在，但主要關注死因贈與和生前贈與或遺贈之差異。在各個具體的遺產或繼承事件中，死因贈與何時為人所用，其相關紛爭有何特色，則是目前為止的法學研究未探討者。有鑑於此，本文蒐集了最高法院死因贈與相關的19則裁判，發現死因贈與可分為家產分析型以及類似遺贈型，釐清了死因贈與在臺灣社會的實態，其次整理法院見解，最後建議死因贈與的類型化有其必要，死因贈與意義與功能非僅限於一種，法院應隨個案事實調整其解釋方向，亦即家產分析型應強化其拘束力，而類似遺贈型則與遺贈同解即可。

Although there is no provision on gift causa mortis in the Taiwanese Civil Code,we not only find its existence in numerous precedents, but also recognize the conceptpervasively in legal treatieses. Scholars’ main discussion concentrates on thedifference among gift causa mortis, inter vivos gift and legacy. Furthermore, sincegift causa mortis lacks clear rules in the statutes, to what extend the rules on intervivos gift and legacy could be analogized to gift causa mortis, and what its legaleffect should be, has only been a theoretical debate. On the other hand, thecharacteristic and function of gift causa mortis, that is, in which kind ofcircumstances people would tend to choose gift causa mortis, and how gift causamortis functions compared with other devise mechanisms prescribed in the law ofwill, is not completely studied yet. This research analyzes nineteen Supreme Courtcases related to gift causa mortis in order to observe the process of localization inTaiwan. It concludes that gifts causa mortis in Taiwan appear in two differentsenarios: one is division of family property, and the other is a substitute for devisewhile the will is void for lack of formalities. The division of family property mayinclude property owned by the father, mother and sons. The concept is similar topartition of the concurrent estate rather than purely gratuitous transfer. Nevertheless,the court in Taiwan usually take a single transfer as a gift. The author suggests that it is necessary to consider the characteristics of partition and emphasize the effect ofbreach. On the other hand, regarding the typical gift causa mortis, in order not toconflict with the rules of formality of wills, it should be recognized exceptionally andthe effect should be as same as devise or legacy.