遗嘱继承不发生代位继承之原因探讨

Probing into the Reasons Why There Is No Subrogation in Testamentary Succession

摘要: 《民法典》第1154条第3项规定遗嘱继承人、受遗赠人先于遗嘱人死亡或终止的，遗嘱不生效力。关于代位继承的性质向有“固有权说”与“代表权说”之争，认为“代表权说”不符合民法基本原理，且与代位继承发生的亲系继承原则以及按支脉继承原则相悖。从解释论出发认为法律规定遗嘱继承不发生代位继承的原因在于法律推定被继承人只希望其指定的继承人本人，而非其后代继承其遗产。且该推定是基于继承法保护家庭利益之功能。

Abstract: Item 3 of article 1154 of the Civil Code stipulates that if the testamentary successor or legatee dies or terminates before the testator, the will shall not take effect. As for the nature of subrogation inheritance, there is a dispute between “inherent right theory” and “representative right theory”. It is believed that “representative right theory” does not conform to the basic principles of civil law, and is contrary to the principle of kin-ship inheritance and the principle of inheritance by branch. From the perspective of interpretation, the reason why the law stipulates that there is no subrogation in testamentary succession is that the law presumes that the decedent only wants his designated successor, not his descendants, to inherit his inheritance. And the presumption is based on the function of inheritance law to protect family interests.