| Since the Civil Code came into effect,the right of residence has been established in two ways: contract and will,which is conducive to protecting the testator’s true will and the legitimate rights and interests of the holder of the right of residence.However,there are still problems in the application of the law,the chapter on the right of residence of the Civil Code mainly stipulates the establishment of the right of residence by contract,and there is only Article 371 "Refer to the relevant provisions of this Chapter" for the establishment of a will,and there is a significant difference between establish residence by means of a will and the contract,the former is a unilateral act and a cause of death,while the latter is an act of both parties and a living act,and the will involves the relevant provisions of the inheritance part.Therefore,based on the different understandings of Article 371 of the Civil Code,the academic circles have fiercely discussed the will establishes the validity of the right of residence;forming four different theories: "registration validity theory","registration confrontation theory","inheritance occurrence theory" and "two-stage theory",resulting in the interpretation dilemma of the validity of the will establishes the right of residence.The interpretation of the validity of the creation of the right of abode by means of a will should be based on the premise that the will is valid.The function of a will lies in the directional inheritance and creation of property,the right of residence is the establishment of a newly formed right through a will,the right of residence is not an inheritance,inheritance cannot occur.The function of establishing the right of residence by means of a will is to protect the residence rights and interests of persons who have an identity relationship or other emotional relationship with the testator,and to understand the "testamentary method" and "application by reference" in Article 371 of the Civil Code according to the meaning,context and legal system of the law,and the interpretation from the perspective of interpretation should comply with the provisions of the Inheritance Series,and the "application by reference" in Article 371 means "general reference application".Based on the legislative purpose of the right of abode system and the true will of the testator,comprehensively considering the rules of change of property rights and the principles of inheritance law,according to the identity of the right of residence holder,the rules of change of property rights based on testamentary inheritance or bequest are applied by analogy,and a differentiated interpretation is made: First,when the testator establishes the right of residence for persons within the legal heirs in the will,Article 230 of the Civil Code should be applied by analogy because the will has the nature of the causal act of death.The right of residence takes effect from the beginning of the succession;Second,when the testator establishes the right of abode for the non-statutory heirs in the will,because the bequest has the effect of a claim,Article 368 of the Civil Code should be applied by reference,and the right of abode shall take effect from the time of registration. |
