遺囑處分行為效力之爭——越過鴨兔同體的迷霧

On the Legal Effect of Testamentary Dispositions: Seen through the Rabbit-duck Illusion

民法第1225條僅係規定「應得特留分之人，如因被繼承人所為之遺贈，致其應得之數不足者，得按其不足之數由遺贈財產扣減之。受遺贈人有數人時，應按其所得遺贈價額比例扣減」。一般認為指定應繼分、指定遺產分割方法亦得類推適用本條規定。而通說均謂遺贈僅有債權的效力，另外二種遺囑處分行為是否與遺贈同樣，於學說及實務均有爭議。受地政實務之影響，司法裁判實務上曾有物權效力說之盛行。惟採取債權效力說方符合台灣繼承法之學理，學理並指出特留分規定之「違反」與特留分權利「侵害」之區分。 是以近年多數最高法院裁判亦已明確採取此區分，僅知悉遺囑內容，尚非遺囑之履行，扣減權之期間尚不起算；至於特留分權利人仍應行使扣減權方得消滅單獨登記之效力，似又兼有物權效力說之一面。然而，在解釋論貫徹債權效力說下，遺囑既然並無物權效、分割效，則欠缺全體繼承人合意時，並無法單依遺囑為登記而生物權移轉之效果。則自亦無物權形成權作用的扣減權之登場餘地，以遺囑繼承為登記原因之該登記為無效，直接依請求予以塗銷即可。

Article 1225 of the Taiwan Civil Law only provides that “A person entitled to a compulsory portion may have the amount of the deficit deducted from the property of a legacy, if the amount of his compulsory portion becomes deficient on account of the legacy made by the testator. If there are several legatees, deductions must be made in proportion to the value of the legacies they severally receive.” It is generally accepted that the rule can also be analogously applied to the designation of inheritance shares and the designation of methods for dividing the estate. According to the prevailing view in Taiwan, bequeathment has only the effect of a creditor’s right (obligational effect). Whether the other two types of testamentary dispositions should be treated the same remains controversial in both doctrine and practice. Influenced by land registration practices, the theory that such dispositions have real property effects once prevailed in judicial decisions. However, only the doctrine of the effect of a creditor’s right, is consistent with the academic theory of Taiwan’s inheritance law, which also points out the distinction between “violation” of compulsory portion provisions and “infringement” of compulsory portion rights. Therefore, most Supreme Court decisions in recent years have clearly adopted this distinction. Hence, merely knowing the contents of the will is not the performance of the will, so the exclusion period of the right of deduction will not start. As for the right holder of the compulsory portion, the right of deduction should still be exercised to eliminate the effect of separate registration. This seems to have the doctrine of the effect of an owner’s right at the same time. However, in terms of legal interpretation, if the doctrine of the effect of a creditor’s right is implemented, then since the will itself has no real rights effect or division effect, in the absence of the consent of all heirs, it cannot produce the effect of transferring ownership simply by registering according to the will. Consequently, there is no justification for invoking the right of deduction as a real-right-modifying mechanism. Such registration based on testamentary inheritance as its cause should be regarded as invalid, and may be directly canceled upon proper request.