高齡生存配偶就婚姻住宅法定居住權研議

Study on Legal Right of Habitation at Marital Home for Elderly Surviving Spouses

我國已進入高齡社會，民事審判實務常見情形，供夫妻婚姻生活用之房屋，因登記名義配偶死亡，成為共同繼承之遺產，生存配偶因遺產分割被迫必需遷離，重新適應新環境。為使高齡生存配偶得以繼續居住於原有婚姻住宅權利，法制面有特別創制高齡生存配偶對婚姻住宅有法定居住權必要。法定居住權內容，不在使生存配偶取得房屋所有權，僅規定其有永久居住權為足，目的在提高其得以自遺產中獲得現金財貨比例，以供晚年生活資金之需，功能上與「以房養老」有異曲同工之妙。惟此種遺產分割方式，將改變共有物分割之「權能合一」傳統思維，致不動產所有權與用益權分離，而由不同權利主體取得，性質上與居住人役權相當。人役權制度為我國物權法所無，高齡生存配偶法定居住權之創制，可以仿效日本二○一八年民法繼承編新增配偶法定居住權相關規定。

As aged society is now a reality in Taiwan, one of the most common civil procedure cases nowadays involves the house in which the couple lived during their marriage became a jointly inherited property due to the death of one of the spouses (who served as the registered holder of the house). And the surviving spouse was forced to move out of the house and adapt to a new environment due to the division of the inherited property. In order to allow the elderly surviving spouses to live in the original marital home, the legal system should specifically establish a law that grants them the legal right of habitation, allowing them to stay in their original house. The legal right of habitation is not created to allow the surviving spouse to obtain the ownership of the house. Rather, it only grants the right of permanent habitation. The percentage of the cash inheritance that the surviving spouse can obtain will thus be increased, fulfilling the need for the spouse’s living cost. While the function of this right is similar to the reverse mortgage, it challenges the traditional“unity of rights and powers”thinking of the inheritance division method—as the ownership of the real estate is separated from the usufruct, and both are owned by different subjects of right. The nature of right is close to the personal servitude of habitation. Since personal servitude does not exist in Taiwan’s property low, the establishment of the elderly surviving spouse’s right of habitation may refer to the revised 2018 Japanese Civil Code regarding the newly established legal right of habitation for the surviving spouse.