论遗赠物上代位之推定制度

On the System of Subrogation Presumption about Bequest

遗嘱人因遗赠物毁损、灭失、被征收或丧失占有而对他人取得赔偿金请求权、保险金请求权、补偿金请求权等权利时,法律推定遗嘱人有以该权利而为遗赠之意思。遗嘱人倘因遗赠物与他人之物附合、混合或加工而取得添附物之所有权或共有权时,推定以其所取得之权利为遗赠。遗赠物上附有抵押权、质权等担保物权,遗嘱人因遗赠物毁损、灭失等所取得的赔偿金请求权、保险金请求权等权利上同时存在担保物权物上代位与遗赠物上代位时,担保物权物上代位优先于遗赠物上代位。

Law will presume that the testator have the meaning of taking such rights as bequest, when testator ob tain the compensation claim, insurance claim and so on for the legacy damaging, losing, expropriated or loss of possession. The testator will be presumed to take the rights of ownership or co-ownership as legacy if the origi nal legacy annexing, mixing or processing with other objects and hence the testator have ownership or co-own ership. If there exist claiming rights/insurance claiming rights for the reason of legacy damaged or lost and there co-exist subrogation over securities and legacy, subrogation over securities shall be prior to subrogation over legacy, when there are securities such as mortgage and collateral rights on legacy