死者的話語權？——以立遺囑人為中心的遺囑法制研究

Dead Man’s Words: Focusing on the Free Will of the Testator on Succession Law

遺囑，是死者展現其死後話語權的重要方式。立遺囑人在生前留下遺囑，待其死後發生法律效力。遺囑，成為立遺囑人對自己所有事務主張話語權的重要手段。因此本論文認為遺囑的討論，不應該僅針對遺囑中繼承分配功能進行研究。我國立遺囑人常將遺囑用於規劃身後事，本文將遺囑的討論擴大到遺囑中殯葬與祭祀的規劃。
人死後必定會留下遺體與遺產，需要進行財產轉移與遺體安置。遺體處置的部分，涉及殯葬儀式的舉辦、遺體保存地點以及相關費用之必要支出等。若未能於生前進行良好的規劃，當家屬間對於如何處置死者身後事並無共識時，必會成為家屬間爭吵的開端。本文認為立遺囑人若在生前進行妥適規劃，可以讓遺囑成為指引家屬間形成共識的力量，作為杜絕家庭紛爭及凝聚家庭羈絆的手段。
人們希望獲得一份體面、莊重且符合心意的臨終儀式。這些殯葬與祭祀費用涉及，是否從應繼遺產中支出？以及如何支出？是否由繼承人代墊？等討論。遺囑如同死者之口，在立遺囑人死後為其發聲。使立遺囑人得在死後，對其遺產與遺體的處置有一定的話語權。如何使立遺囑人在死後仍能掌控其所有事務，並能得償所願為本論文的研究目標。
本論文分為六個章節，第一章講述本文研究動機及方式。第二章介紹我國遺囑法制沿革與規範。第三章中，以實際案例點出遺囑中，繼承分配功能、殯葬與祭祀規劃之爭議並回顧相關文獻，說明我國遺囑法制之爭議與極限。於第四章簡要介紹美國遺囑法制。於第五章中提出預先進行死亡規劃的重要性，並對我國遺囑法制提出修正建議。第六章，總結前五章之研究，回顧我國遺囑法制之不足，並建構出本文期待的解決圖。

Testament is an important way for the deceased to demonstrate his right to speak after his death. The testator leaves a testament during his lifetime, which takes legal effect after his death. Therefore, discussing a will should not only discuss the distribution of the estate. A testament is an important way to allocate the estate. When planning estate, besides inheritance distribution, the testators in Taiwan will incorporate their funeral, interment rituals and worship arrangements into it.
A person will leave his or her body and inheritance after death. Property transfer and body resettlement need to be carried out unavoidably. Rather than disputes in family proceedings, these issues should be defined as family autonomy. The manage of the remains, including the funeral ceremony, the gravesite and the future worship, as well as the necessary expenses of funeral and ritual expenses, if not well planned during lifetime, will lead to family quarrels. Especially when there is no consensus among family members on how to deal with the remains and inheritance. The author believes that people should plan their estates while they are alive and make it a gift to eliminate family disputes. The testament which is arranged by the testator’s free will is a force to guide family members to form a consensus and resolve family disputes.
People hope that their funerals are decent and fit their heart, so they use testament to assemble the funeral and worship expenses. A testament is like the hand of the deceased, allowing the testators to take control over their estate and remains after death. The testator can use the testament, a legally binding document, to claim the autonomy of funeral, interment and worship arrangements from the family. The purpose of this thesis is to make sure the testament can be executed as the testator’s plan. The scope includes remains and estate planning.
This thesis divides into six chapters. In the first chapter, I describes the research motivation and research methods. The second chapter, I introduces the evolution and norms of the legal system of testaments in Taiwan and explains the difficulties in execution. In the third chapter, to illustrate the difficulties and boundaries of Taiwan’s legal system of testaments, I pointed out the disputes about inheritance and distribution, funeral and worship planning in the testament with a review of actual cases and related literature. Chapter 4 is a brief introduction to the American the legal system of testaments, taking the idea of the absolute testamentary freedom principle from American as a reference. In Chapter 5, the importance of pre-planning for death is mentioned, and amendments are proposed to the legal system of testaments in Taiwan. I summarizes the research of the five chapters in last chapter, reviews the shortcomings of the legal system of testaments in Taiwan, and constructs the solution that this article expects.