以遗嘱方式设立居住权的生效问题思考

Reflections on the Effectiveness of Residency Rights Established Through Wills

《民法典》首次规定了居住权制度,但理论与实务对此颇有争议。以遗嘱方式设立居住权的生效要件应区分为遗嘱继承和遗赠两种方式。基于遗嘱继承设立居住权可以分为两个阶段:第一阶段发生在被继承人与继承人之间,继承开始时即发生物权变动效力;第二阶段发生在共同继承人之间,居住权生效要件与遗产分割效力相关。按照移转主义观点,在第二阶段中,当事人采用指定或者协议等意定方式分割,居住权应自登记时设立;当事人通过裁判方式分割,居住权则自法律文书生效时设立。基于遗赠设立居住权的生效要件要参照《民法典》第368条的规定,自登记时设立。

The Civil Code of the People′s Republic of China provides for the first time the system of residency rights,but there is considerable controversy in the theory and practice of this new system.To discuss the effective requirements for establishing residency rights through a will,it is necessary to distinguish between testamentary inheritance and bequest.Firstly,the establishment of residency rights based on testamentary inheritance can be divided into two stages.The first stage occurs between the deceased and the inheritor,and the effect of property right transfer occurs from the beginning of inheritance.The second stage occurs between the joint heirs,where the effective requirements of the right of abode are related to the effectiveness of the estate division.According to the perspective of transfer doctrine,if the parties use designated or agreed means of division,the right of abode is established at the time of registration.If the parties deal with estate division by the right of residency is established at the time of the legal document’s effectiveness.The effective requirements for establishing residency rights based on bequests shall be established at the time of registration in accordance with Article 368 of The Civil Code of the People′s Republic of China.