以遗嘱方式设立居住权的规范构造

The Normative Construction of Establishing a Right of Residence by Will

摘要: 本文以《民法典》第371条“参照适用”为研究范畴，尝试明确遗嘱设立居住权的法律适用规则。《民法典》第371条为“参照适用”的立法技术，有连接规范、填补漏洞等作用，属于不完全的指示参照性规范，需要其他规范的协同才能形成一个完整的裁判依据。遗嘱人对房屋享有所有权是遗嘱设立居住权的前提要件，夫妻共有房屋一般需分割，以满足遗嘱设立居住权的客体的特定性要求，但通过继承或受赠所得的房屋应具有特殊性，即因继承或受赠房屋的人可不经配偶同意单方设立居住权，非因继承或受赠房屋的人则需征得配偶同意。在形式要件中，口头遗嘱设立的居住权有效，但是建议采用书面形式以减少纠纷。在效力方面，如果是遗嘱继承设立的居住权，于继承开始时即取得居住权效力，无须登记；遗赠设立的居住权，受遗赠人接受遗赠的，居住权于登记时设立。

Abstract: This article focuses on Article 371 of the Civil Code, which employs the legislative technique of “reference application”, to attempt to clarify the legal application rules for the establishment of residential rights through wills. Article 371 of the Civil Code serves as a connecting norm and fills gaps, belonging to incomplete directive reference norms that require the coordination of other norms to form a complete basis for adjudication. The testator’s ownership of a house is a prerequisite for establishing residential rights through a will. Houses jointly owned by husband and wife generally need to be divided to meet the specific requirements of the object of residential rights established through a will. However, houses acquired through inheritance or gift should have specificity, meaning that the person inheriting or receiving the house can unilaterally establish residential rights without the consent of their spouse, while those who do not inherit or receive the house must obtain their spouse’s consent. In terms of formal requirements, residential rights established through oral wills are valid, but it is recommended to use written form to reduce disputes. In terms of effectiveness, if residential rights are established through testamentary succession, they acquire effectiveness at the commencement of succession and do not require registration; if established through bequest, residential rights are established upon registration if the legatee accepts the bequest.