遺產清算之探討——以消極遺產大於積極遺產為中心

我國繼承法制於2009年繼承編修正，法定繼承制度改以「繼承人之限定責任」為本則，基於衡平遺產債權人之權益保障，明定繼承人應依法履行遺產清算義務。本文特以繼承所得遺產（積極遺產）不足清償被繼承人債務（消極遺產）之清算類型，輔以遺產清算期間，部分債權人啟動強制執行程序，導致遺產清算義務人因執行法院之分配而被動清償債務，以致逸脫「除優先債權外，均應按其數額，比例計算，以遺產分別償還」之法律規定，進而造成部分遺產債權人未能按應受清償比例，受領應受清償數額之情形，對此情形之因應、防範，及受有損害債權人權利之維護為本文研析重點。

Our country's legal inheritance system has changed to ''limited liability of heirs'' in 2009 for the protection of the rights and interests of creditors of the decedent. It is stipulated that heirs should perform estate liquidation obligations in accordance with the law. This thesis first focus on the types of liquidation in which the inherited inheritance (positive inheritance) is insufficient to pay off the debts of the deceased (passive inheritance). During the period of inheritance liquidation, some creditors initiate compulsory enforcement, resulting in the estate liquidation obligor being forced to repay part of the debts ordered by the court. Consequently, escaping the law that ''except for priority debts, all debts shall be calculated according to their amount and proportion and repaid separately from the estate''; therein lies the problem that some creditors might be unable to receive the repayment amount according to the calculated proportion of repayment. How to respond to and prevent this problem, and how to protect creditors' legal rights which are the focus of this article.