論被繼承人對繼承人負有債務

On the Situation about Decedent be in Debts with One of the Heirs

遺產分割時，繼承人中如有對於被繼承人負有債務者，其債務之清償「應……由該繼承人之應繼分內扣還」；被繼承人對繼承人負有債務，卻未如民法第1172條設有處理之明文。現有三種解釋，與舊法時之看法若干牽連：債權平等說因應現行法，堅持繼承人必須先償還債務方得分割遺產；例外第1171條說則停留在舊法時代；實務上沿用參考第1172條說，惟此可能忽視非繼承人與繼承人同樣作為遺產債權人之平等。本文認為宜依循現行法規定整合以上各說，以兼顧債權平等、內外有別、繼承人保護等價值理念。

The situation about a decedent is in debts with one of the heirs, has no settled law like that “If one of the heirs is in debts with the deceased, the amount of the debt shall at the time of partition of the inheritance, be deducted from that heir’s entitled portion” provided by the article 1172 of the Civil Code to solve the problem of repayment from the heirs at the time of partition of the inheritance. There are three explanations under the current law, which are influenced by the opinions under the old law. The theory of equality of creditors would insist that the heirs should discharge the debts of the inheritance, before the partition of the inheritance. The theory of the article 1171 by way of exception is still staying at the age of the old law. The theory of the article 1172 to be applied by analogy was accepted by Taiwan’s legal practice. However, it could get the consequences of ignoring the equality of creditors to be separated into the heirs and non-heir. In my opinion, we should follow the existing legislation to integrate all the theories above, for taking into consideration about the equality of creditors, and admitting the difference between repayment and partition of the inheritance, and the protection of the heirs at the same time.