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律師見解
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  • 作家相片尚澄法律小編

神之雫:我超愛這部劇但恕我直言,你似乎請了一位神之律師 Drops of God & the OMG Lawyer

作者 S. HSU, Advisor of Enlighten Law Group

最近我忍不住要追的一部《神之雫 Drops of God》,這是一部華麗呈現的跨國、多語言影集,主題元素除了品酒、美食、還包含天才背後的心理陰暗面。

故事以法國旅居東京的品酒大師亞歷山大·萊哲(Alexandre Léger)的病逝揭開序幕。在他辭世之際,留下了價值近1.5億美元,每瓶酒都是精心挑選且規模達全球最大的紅酒收藏(87,000瓶紅酒),放在一棟高雅大器的東京的別墅地窖內,以及一份有趣但不禁讓我懷疑是否沒有委任律師擬的遺囑: 規定繼承這些遺產的繼承人需要通過三道品酒相關的測驗。兩位被測驗者分別是女兒與愛徒。擁有驚人品酒天賦的女兒卡蜜爾(Camille)自幼即擁有敏銳異常的味覺與味覺,但亞歷山大虎爸式的品酒訓練導致她心裡產生創傷,對葡萄酒心生反感,與父親疏遠多年。另一位日本愛徒遠峰 一青(Issei Tomine),出身於日本名門望族,天性高冷,遠峰家庭對他品酒的興趣強烈反對,一直要他回去接班企業。

我很喜歡這部劇的氛圍,要說唯一缺陷應該是: 我會一直去想那份遺囑的缺失。我要是女主角,會很不高興,當場質問那個宣讀遺囑的律師為何要跟我胡說八道,明明不論是用法國或日本法,我都有特留分! 你這是侵害我的權益!」(還是說法律人的都沒看這一部?!)

法國和日本都有「特留分」(日本: 「遺留分制度(legally reserved portion system)」的規定),法文來源是「héritier légitime (rightful heir)」,意指合法的繼承人,即配偶與直系血親的子女、父母和祖父母在法律上有最低保障的遺產比例,而且只有某些特定情形下才可以剝奪這項權利(例如:試圖對方謀殺你或是施以虐待)。事實上當初日本這一塊是抄法國的,法國最早在拿破崙法典就有這個制度,避免貴族財產集中於單一繼承人。

也就是說你技術上無法將**所有**資產全給一個人。除非遺族是法盲,呆呆的不知道要起訴爭取自己的權益,嘿嘿。不然 正常情況下,遺族如果發現特留分受侵害,是可以主張特留分扣減,請求你從遺產中返還他的份。


根據法國民法第 913 條規定子女為1人時,他合法上最低保障額度是遺產的一半,就像卡蜜爾的情況一樣。子女有2人,他們可獲得遺產的2/3,>=3位子女,他們可權獲得遺產的3/4。如果沒有子女,則配偶可以獲得遺產1/4。即使適用日本法律,配偶(在這個案例因父母離異,不存在)和子女法律上特留分是遺產的1/2,在這個案例會全歸女主角。無論在法國或日本,特留分被侵害都是可以打官司請求從遺產扣減還給家屬。(日本:「遺留分侵害額請求権」)

台灣也有類似的制度,需要綜合看民法第1138條1144條。對於配偶和子女,逝者的資產將按人數平均分配,如果有2個孩子和1個配偶,則每個人可以獲得1/(1+2)=1/3,而特留分依照民法第1223條,比例則是這個數字的一半,即1/6。在卡蜜爾的情況下,如果她適用我們的制度,她是獨生子女,所以她可以獲得100%的一半,因為她的父親已離婚且沒有配偶。要是有人侵害她的特留分,她可以依照民法第1225條,向獲得遺產的繼承人主張特留分扣減(白話文:我應得的份額還給我)。

p.s. 我看了兩集,據說後面劇情發展是這位遠峰一青會被爆出是Alexandre的私生子,但因為一青靠母親繼承家業,母親也是已婚的時候生下他,他在日本法律上就是遠峰家千金跟疑似入贅的女婿的婚生子,即便生父是Alexandre也沒有資格主張Léger家特留分。(台灣也是一樣道理)。法國比較特別是,將私生子跟婚生子列為同等地位,因此如果依照法國法他就會有跟同父異母的手足Camille有一樣的特留分,各1/3,合計2/3。


***歡迎轉載,需保留全文與註明出處***


Drops of God: Spectacularly artistic drama, but your lawyer makes me think OMG

I'm watching a drama called "Drops of God" which is a sumptuously presented multinational, multi-lingual drama about wine tasting, gastronomy, and the dark sides of being a genius. The story opens with the death of Alexandre Léger, a prominent French wine critic who has been residing in Tokyo for decades. Upon his passing, he leaves behind an meticulously curated wine cellar comprising 87,000 bottles valued at nearly $150 million housed in a luxurious mansion in Japan, along with a will that states the rightful heir of his estate needs to pass three wine-tasting related tests.

The participants in this endeavor are the two individuals whom he seemingly held the greatest affection for. The first is his estranged daughter, Camille, a child-prodigy who possesses an extraordinarily sensitive palate but grew up estranged from her father. Alexandre had relentlessly trained her as a young girl, which eventually traumatized her and resulted in her revulsion towards wine. The other contender is his Japanese protégé, Issei Tomine, an analytical and steely young man hailing from a wealthy Japanese family that strongly disapproves of his interest in wine.

I just couldn't stop thinking that this will is flawed. I would be so pissed if I were Camille. Why didn't Camille shout at the lawyer reading the will, " Why are you bullshitting me? This is a violation of my rights. No matter if the will is under French or Japanese jurisdiction, I am legally entitled to half already via my reserved portion!!!" 👊

France and Japan both have the "legitima portio" system by which spouses, children, parents, and grandparents are legally guaranteed a certain portion of the deceased's estate, and can't be barred without a valid legal reason (like them attempting to murder you). The term originates from the French phrase "héritier légitime," which denotes the rightful inheritor, and was added in the The Napoleonic Code in 1804 to prevent concentration of assets among aristocrats. As a result, you technically can't give all of your assets to one person, or those entitled to "legitima portio" can sue you to claim their stake, this principle is the same in France and Japan. (Of course, if the family is not familiar with law and don't sue, then count yourself lucky.)

Under the France Civil Code Article 913, the amount set aside as the reserve is as follows: If there is 1 child, they are legally entitled to receive 1/2 of the estate, as in Camille's case. With 2 children, they receive 2/3 of the estate between them. With three or more children, they receive 3/4 of the estate between them. If there are no children, then the spouse can claim 25 of the estate. Even if you use Japanese law, the spouse (non-existent in this case) and children are legally entitled to 1/2 of the estate. In Camille's case she would minimally get 1/2 as the only child as her parents are divorced.


Taiwan also has a similar system, which needs to be considered in conjunction with Articles 1138 and 1144 of the Civil Code. For the spouse and children, the deceased person's assets will be divided equally among the individuals. If there are two children and one spouse, each person can receive 1/(1+2)=1/3. The reserved portion, as determined by the proportion in accordance with Article 1223 of the Civil Code, is half of this amount, which is 1/6. In Camille's case, if she follows our system, as the only child she can receive half of 100% because her father is divorced and has no spouse. If someone infringes upon her reserved portion, she can assert a deduction of the reserved portion from Issei Tomine in accordance with Article 1225 of the Civil Code (in plain terms: Give me back what I'm entitled to).


p.s. I have watched two episodes, and it is said that later on it's revealed that Issei is actually Alexandre's illegitimate child, a product of an affair between his mother and Alexandre. However, because Issei 's mother is the heiress of the Tomine Group, and gave birth to him while she was married, legally he is considered the legitimate child of the Tomine family and their cuckolded son-in-law. Under Japanese law (same as Taiwan), even if his biological father is Alexandre, legally as he "already has parents" he does not have the right to be adopted thus claim a "legitima portio" stake of the Léger family estate. However, French law does not distinguish between illegitimate children, legitimate children and children from a previous marriage, they are all entitled to the same rights regarding the estate, so he would be on equal terms with his half-sister Camille, each entitled to a minimum 1/3 of the estate, 2/3 total.

***Please cite the source for republication***


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