遗嘱撤回规范的法教义学重释

Reinterpretation of the Norms for Revocation of Wills under Legal Dogmatics

遗嘱自由原则的内涵包括遗嘱人自由设立遗嘱与自由撤回遗嘱。遗嘱的撤回具有严格的形式要求,其目的在于固定证据与督促遗嘱人审慎行为。《民法典》第1142条第2款规定的相反行为也应当具有一定的形式要求,一味扩张相反行为的范围不仅无益于还原遗嘱人真意,更有引发逻辑结构冲突、动摇遗嘱体系一贯性之虞。相反行为仅指遗嘱人做出的满足形式要件的以财产分割为目的双方或多方法律行为,其他行为不被认定为撤回,而是通过遗嘱生效后的清算程序确定行为造成的债权债务变动。

The connotation of the principle of freedom of testament includes the freedom of the testator to establish a will and the freedom to revoke a will. The revocation of a will has strict formal requirements, and its purpose is to fix the evidence and urge the testator to act prudently. The op-posite behavior should also have certain formal requirements. Blindly expanding the scope of the opposite behavior is not only unhelpful to restore the true meaning of the testator, but also may cause conflicts in the logical structure and shake the consistency of the will system. Contrary acts only refer to the legal acts of two or more parties made by the testator for the purpose of property division, which satisfy the formal requirements. Other acts are not deemed to be revocation, but the change of creditor’s rights and debts caused by the act is determined through the liquidation pro-cedure after the will takes effect.