遗嘱方式设立居住权的法律适用冲突及消解路径

The Conflict of Law Application of the Right of Habitation Created by Will and Its Resolution Avenues

《民法典》规定可以遗嘱方式设立居住权,这对遗嘱人自由处分财产和居住权人合法权益的保障意义重大。但在具体的法律适用中仍有不尽人意之处,一是《民法典》第230条未明确遗赠和遗嘱继承的法律效力,遗嘱设立居住权的效力认定一直存在争议;二是《民法典》第371条对遗嘱设立居住权的登记效力有所涉及,但学界依然存在登记生效主义与登记宣示主义的不同理解;三是《民法典》第230条、第368条、第371条在具体适用上也存在诸多冲突。应对《民法典》第230条和第371条进行规范解释,明确遗赠的债权效力,遗嘱继承能直接导致物权变动。遗赠设立居住权的,采用登记生效主义;遗嘱继承设立居住权的,采用登记宣示主义。同时,对《民法典》第1147条第6项进行法释义学解读,将居住权登记解释为遗产管理人的法定义务,切实保护居住权人的合法权益。

The Civil Code of the People’s Republic of China stipulates that the right of habitation can be created by will, which is of great significance to the protection of the testator’s free disposal of property and the lawful rights and interests of the person with the right of habitation. However, there are still some shortcomings in the application of specific laws. First, article 230 of the Civil Code does not specify the legal effect of bequest and testamentary succession, and the confirmation of the effect of creating the right of habitation by will has always been controversial;Second, article 371 of the Civil Code involves the validity of the registration of the right of habitation created by will, but there are still different understandings between the doctrine of registration effectiveness and the doctrine of registration declaration in the academic circles;Thirdly, there are many conflicts in the application of articles 230, 368 and 371 of the Civil Code. Article 230 and article 371 of the Civil Code should be interpreted in a normative way to clarify legacy has the effect of creditor’s rights and testamentary succession can directly lead to the change of property rights. Where the right of habitation is created by bequest, the doctrine of effective registration shall be adopted;Where the right of habitation is established by testamentary succession, the doctrine of registration declaration shall be adopted. At the same time, China should interpret the sixth item of article 1147 of the Civil Code by means of hermeneutics, and interpret the registration of the right of habitation as the legal obligation of the administrator of the estate, so as to protect the lawful rights and interests of the person with the right of habitation.