| 英文摘要 |
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.
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