遗嘱设立居住权研究

A Study on the Establishment of Right of Habitation by Will

摘要: 《民法典》确立居住权制度对现实存在的居住权益起到重要确认和维护作用。然而《民法典》中对遗嘱设立居住权的规则适用含糊不明。本文从居住权的概念和性质入手，明确遗嘱设立居住权的单方涉权性和安排事务性。并进一步阐述遗嘱设立居住权的形式要件不局限于书面遗嘱，实质要件需要遗嘱人具备遗嘱设立居住权的能力，遗嘱内容合法且不能与必留份制度冲突。本文还论述了遗嘱设立居住权的生效模式应采用区分主义。遗嘱继承取得的居住权采宣示主义，遗赠设立的居住权采登记生效主义。

Abstract: The Civil Code establishes the system of the right of habitation, which plays a vital role in recognizing and safeguarding the residential rights and interests existing in reality. Nevertheless, the provisions of the Civil Code concerning the application of rules for the establishment of the right of habitation by will remain ambiguous. Starting with the concept and nature of the right of habitation, this paper clarifies that the establishment of the right of habitation by will features the nature of a unilateral right-granting act and estate arrangement. It further elaborates that the formal requirements for establishing the right of habitation by will are not limited to written wills. The substantive requirements mandate that the testator must possess the capacity to create a right of habitation by will, the contents of the will shall be lawful and shall not conflict with the system of the mandatory reserve portion. This paper also argues that a differentiation approach shall be adopted for the validity mode of the right of habitation established by will: the right of habitation acquired through testamentary succession shall follow the declaratory doctrine, while the right of habitation established by legacy shall adopt the registration validity doctrine.