特留分之保護方法：從扣減而回復部分之法律性質談起

當遺囑受益人亦為繼承人時，遺產分割前，若被繼承人所為遺囑處分侵害特留分，其餘繼承人（特留分權利人）該如何行使特留分扣減？影響我國甚深的日本學說與實務認為，當扣減標的物之物權已移轉於遺囑受益人（例如特定物遺贈）時，因扣減而回復之物權屬於特留分權利人個人，特留分權利人若欲基於回復的物權而主張所有物返還請求，須至地方裁判所起訴。另一方面，其餘尚未分割之遺產，則須在家庭裁判所進行遺產分割之審判。因此造成了同一被繼承人的遺產問題，分裂為遺囑處分之「特留分扣減」與其餘遺產之「遺產分割」二程序。我國最高法院判決則認為在遺產分割前，即使特留分權利人以意思表示扣減，所回復者乃是復歸於公同共有之「遺產」而非個人，特留分權利人無具體之應有部分，不可對遺囑受益人行使物上請求權。因此遺產分割前，若遺囑處分財產之物權已移轉至遺囑受益人，因遺囑受益人亦為繼承人，特留分權利人僅需提起遺產分割之訴，在過程中表示特留分扣減之意思，便可獲得相當於特留分的遺產分配。本文檢討因特留分扣減而回復的部分之法律性質後，得出結論，亦即我國的特留分保護，多半靠遺產分割可達成，而非「以意思表示扣減，使物權回復，再提起給付之訴」之方法。

關鍵字

特留分；扣減；法律性質；遺產；共同繼承；遺產分割；遺囑；遺贈；程序

並列摘要

This study attempts to find the procedure to protect the compulsory portion by discussing the legal characteristics of the returned portion from deduction. It focuses on the situation where the legatee is also an heir. If the property right of the legacy has been transferred to the legatee exceptionally and the remaining inheritance has not been parted yet, it would be indefinite whether other heirs may skip the partition and assert that the infringed portions have returned to themselves by deduction and hence claim for the return of the legacy on the basis of ownership. By analyzing Japanese theories that were frequently cited by Taiwanese legal research, it is possible to find that the answer to the question above would be affirmative in Japan. As a result, the dispute over inheritance separates into two processes. One is the process of deduction of the legacy for compulsory portion. The other is the process of division of the remaining inherited property. Otherwise, the Supreme Court in Taiwan denies the claim of those other heirs and considers that before the partition of the inheritance, even if the heirs exercise the rights to deduct and make the infringed portions lose their effects, the property right would only return to the inheritance but not to the heirs themselves. Therefore, the other heirs have no specific shares, and they may not claim for the return of the legacy. In summary, it is reasonable to conclude that before the partition of the inheritance, if the property right of the legacy has been transferred to the legatee who is also an heir, other heirs could bring an action for partition of the inheritance directly, express the intent of deduction during the procedure, and finally receive the property rights tantamount to compulsory portions. The protection of the compulsory portion may be accomplished in procedure of partition of the inheritance, rather than the assertion of ”deducting the infringed portions and claiming for return of the property.”