夫妻共同遗嘱之撤回规则研究

Study on the Withdrawal Rules of Joint Wills of Husband and Wife

摘要: 共同遗嘱的相关规则虽目前尚未纳入我国《民法典》的直接规定之范畴，但承认共同遗嘱的效力已是现实之须、利益所求，在承认共同遗嘱效力的基础上，引发了关于夫妻共同遗嘱之撤回效力与实现路径的争议与探讨。夫妻共同遗嘱相较于传统遗嘱，是主体与概念的延伸，具备撤回处分的关联性、撤回时间的阶段性、撤回主体的多元性等特征。从遗嘱自由原则、维护当事人生存利益等视角出发，同时借鉴比较法之相关做法，应在肯定夫妻共同遗嘱可撤回的基础上，以遗嘱订立方一方死亡为界限，分阶段化地探讨夫妻共同遗嘱撤回规则的实现路径，在双方均在世时应赋予遗嘱人任意的撤回权，在夫妻一方死亡后，应将生存方当事人遗嘱的撤回权限缩在意思表示的重大瑕疵、变更保留条款的约定、受益人的不当行为、无法预料的意外情形的范围内。

Abstract: Although the relevant rules of joint wills have not been included in the scope of direct provisions of China’s Civil Code, it is necessary and beneficial to recognize the effect of joint wills. On the basis of recognizing the effect of joint wills, disputes and discussions on the withdrawal effect and realization path of joint wills of husband and wife have been triggered. Compared with traditional wills, the joint will of husband and wife is an extension of the subject and concept, and has the characteristics of the correlation of the withdrawal of the disposition, the phased nature of the withdrawal time, and the plurality of the withdrawn subject. From the perspective of the principle of testamentary freedom, safeguarding the survival interests of the parties, and drawing on the relevant practices of comparative law, on the basis of affirming the revocation of the joint will of the husband and wife, the realization path of the joint will withdrawal rule of the husband and wife should be explored in stages with the death of one of the intestate parties as the boundary, and the testator should be given an arbitrary right of withdrawal when both parties are alive, and after the death of one of the spouses, the right to withdraw the will of the surviving party should be reduced to a major defect in the expression of intent, an agreement to change the reservation clause, the misconduct of the beneficiary, within the scope of unforeseen unexpected circumstances.