我國與日本遺囑信託法制與實務問題之研究

日本法制因具有和我國同屬歐陸法系之相似性，故於我國信託法制定之時，即以修正前日本信託法及日本信託法修正草案第四試案之內容，做為立法時重要之參考藍本之一。嗣後日本於二○○六年間大幅修訂其信託法，其間因修法產生之變動與影響，對於我國信託法制自具極高之研究價值。現今我國遺囑信託業務之推展，猶因法制民情之故，頗多參考日本信託業者之作法，故於日本二○○六年間大幅修訂信託法後，其業務推廣之變化與發展，亦對我國遺囑信託實務之推動具有相當之參考價值。據此，本研究認為，時值我國信託法修法之際，可以日本信託法制及實務運作之改變作為比較研究之對象，並供修法時之參考。同時，在分析比較現有我國法制及實務運作上所產生之問題，亦有助於進一步思考實務問題之解決，促進遺囑信託之推展。我國信託法之制定雖循日本法制，同時參考英、美法之規範，是以隱含因立法例不同而生之學理衝突與對立思維；旋又因我國遺囑法制與物權法制與日本法容有不同，據此亦有異於日本遺囑信託法制及實務運作之問題有待檢視及解決。因此，本研究亦將一併就遺囑信託於現行信託法制下所可能產生之適用衝突為分析、探討，另就我國遺囑信託實務運作之問題加以檢視，以利尋求解決之道。綜觀我國現行信託法之規定，明文有遺囑信託之規定僅有兩條，亦偏向原則性之立法方式，似易因規定未盡詳備、學理及爭議之處理未臻明確，於法規適用上產生因詮釋不同之歧義，造成實務推動之障礙。為避免此種情況，本研究亦同時檢討我國遺囑信託法制相關規定不足之處，並分析我國遺囑信託在實務操作上呈現之問題，於解釋論或立法論上進一步提出解決之方式，以提供我國遺囑信託未來修法及推廣之建議，並作為本研究之最終目的。

關鍵字

遺囑信託；信託；遺囑

並列摘要

Since the similarity that Japanese legal system also belongs civil law system as our country, the content of former Japanese Trust Law and the fourth draft amendment of Japanese Trust Law were taken as important references for legislation blueprint when drafting trust law. Afterward, changes and impacts arising from Japan’s substantial Trust Law amendment in 2006 contained a high research value to our trust law system. Due to legal and sentiments, the promotion of testamentary trust business today greatly reference to the practice of Japanese trust industry. Therefore, changes and development in its business promotion after Japan’s substantial Trust Law amendment in 2006 became excellent reference to the promotion of our testamentary trust practice. Accordingly, this study believed that changes of the trust law system in Japan and practical operation can be taken as the comparison and study object as the reference for amending at this time during our Trust Law amendment. Meanwhile, analyses and comparison of the existing problems occur in our law and practice can be also helpful on further thinking to solve practical problems and promoting the development of testamentary trust. Although the development of our Trust Law followed Japanese legal system, British and American Law norms were also taken as reference, causing the theoretical conflict and confrontation thinking implied by different legislations. Since our testamentary and property legal systems are different from Japanese laws, whether it is different from issues between Japanese testamentary trust legal system and practical operations shall be viewed and addressed. Therefore, this study will also analyze and explore the applicable conflicts arising from testamentary trust in respect of the existing trust law to have a deeper inspect of the issues from practical operation of our testamentary trust legal system for solutions by the analysis and comparison. Based on the regulation of our current Trust Law, there are only two regulations expressing testamentary rules, which favor in legislation method and principle. It is possible to have different interpretations by ambiguity in regulation applicability due to the incomplete regulations and unfinished theoretical and controversial treatment, resulting obstacles in practice promotion. To avoid this situation, this study also reviewed the deficiencies in relevant provisions of our testamentary trust legal system and analyzed problems arose under practical operation of our testamentary trust to further propose solutions by interpretation or legislation as suggestion for the future amendment and promotion of our testamentary trust and as the ultimate goal of this research.