Research On The Legacy System

As an important and special form of testamentary disposal of property,bequest plays an important role in realizing the testator's right to freely dispose of his inheritance,inspiring wealth creation,promoting the development of social welfare undertakings,demonstrating social morality,and maintaining social order and stability.However,there are problems with the Bequest system in my country's "Inheritance Law" and "Opinions on the Implementation of the Inheritance Law" : that is,its structure is incomplete,and its content is incomplete and imperfect.The codification of my country's Civil Code and its judicial interpretation,which has been implemented on January 1,2021,takes into account the stability of legal norms and the variability of legal adjustments as the legislative concept,and adheres to the principle of“should be rough rather than fine”,is not the formulation of a brand-new civil law.Therefore,the bequest system in my country's Civil Code and its judicial interpretations,in addition to the following: add rules for the loss of bequest right,include "organization" in the scope of bequestees,modify the period during which bequestees give up bequests,and improve In addition to the rules for revocation of bequests with burdens,other content follows the content of the Bequest system in my country ' s "Inheritance Law" and "Opinions on the Implementation of the Inheritance Law".With the continuous development of the social economy in our country,the increase of people's wealth,and the evolution of inheritance concepts,there are more and more cases of people disposing of inheritance through bequests.However,because the bequest system is too principled and simple,disputes between the parties due to bequests have occurred from time to time.Based on my country's actual national conditions,people's needs and judicial needs,the importance and necessity of supplementing and improving the Bequest system has become increasingly prominent.Therefore,this article conducts an in-depth study of the Bequest system from five aspects: the subject of the Bequest,the types of the Bequest,the effectiveness of the Bequest,the recognition and abandonment of the Bequest,and the payment of the Bequest.Starting from the reality of our country,this article examines our country's judicial practice,draws on the experience of extraterritorial legislation,and refers to the legislative suggestions of Chinese scholars,and then proposes supplementary and perfect suggestions for the Bequest system.It is hoped that it will be helpful to supplement and refine the judicial interpretation of my country's "Civil Code".In addition to the introduction,this article is divided into seven chapters with approximately 210,000 words.The first chapter is the basic theoretical study of the bequest system.The first section is the definition of bequest.First,clarify the connotation of bequest.By clarifying the relationship between bequest and testamentary inheritance,examining and analyzing the definition of bequest in foreign legislation and Chinese scholars,and combining with the status quo of legislative legislation in my country,this article draws the definition of bequest:Bequest is a single legal act in which natural persons donate their inheritance free of charge to natural persons other than the legal heirs,organizations,collectives or countries by means of wills,without giving them the legal status of the heirs,and taking effect after their death.The characteristics of bequests are: cause of death,essentiality,unilateralism,gratuitous nature,and granting property benefits to the bequeathee.Second,the distinction between bequest and related concepts.In order to understand the meaning of the bequest system more accurately,this article compares and distinguishes the concepts similar to bequests,such as gift,cause of death,and bequest maintenance agreement,and points out that bequest is based on the nature of its unilateral legal behavior.There are many differences in withdrawal,validity,performance,and applicable laws.The second section is about the constitutional elements of bequest and the main content of bequest system.First of all,it is clear that the elements of valid bequests include: the bequestor must have the ability to be a will,the bequestee has the ability to be bequeathed,the object of the bequest is eligible and enforceable,the will meets the statutory requirements of the form of the will,and the bequest is the true expression of the will,the content of the bequest complies with the law and the public order and good customs of the society.The elements of effective bequests include:the death of the bequestor,the bequestee is alive at the beginning of succession,the bequestee did not lose the right to be vested after the bequest was established and before the beginning of the inheritance,and the subject of the bequest is an estate at the beginning of the inheritance.Secondly,it points out that the main content of the bequest system includes the subject of the bequest,the type of the bequest,the effectiveness of the bequest,the recognition and abandonment of the bequest,and the payment of the Bequest.The third section is the legislative value and function of the bequest system.First of all,the bequest system should show the legislative value orientation of freedom,efficiency and order.Secondly,the bequest system should give full play to its institutional function of realizing the right of the testator to freely dispose of the estate,settling and ending disputes to reduce inheritance disputes,stimulating wealth creation and promoting the development of social public welfare undertakings.The second chapter is the investigation and analysis of the historical evolution of the Bequest system.The first section sorts out the historical evolution of the extraterritorial Bequest system,and concludes that the bequest system in the Roman law period has the characteristics of freedom and equality.The bequest system in the Germanic period has the characteristics of the legislative concept of family groupism.The bequest system at the end of the Middle Ages in Europe has the characteristic of being deeply influenced by the religious system.The historical evolution of the Bequest system in modern foreign law is characterized by the principle of freedom of testament and the transition from family groupism to individualism.The second section,through the investigation and analysis of the historical evolution of the bequest system in our country,points out that the characteristics of the Bequest system in the ancient law of our country are: the legislative concept of clanism,and the autonomy of the bequesters is strictly limited.The characteristics of the bequest system in my country's modern law are: the bequest has changed from borrowing from the western "imported products" to the localized "characteristic products",and the bequest has transitioned from being just a supplement to the legal inheritance system to becoming an important content of the testamentary system.The third section is a comparative analysis of the historical evolution of Chinese and foreign bequest systems.It is pointed out that the common characteristics of the historical evolution of Chinese and foreign bequest systems are:both have legislative concepts of family groupism or clanism;both Chinese and foreign modern social bequest systems are influenced by the bequest system of France and Germany derived from Roman law;the expression of the intention of the subject of the bequest has undergone changes from strict restriction to respect and maintenance;the difference in the historical evolution of the bequest system between China and foreign countries is: whether it is not affected by the religious system is different,the legislative concepts of family groupism or clanism are different.The third chapter is the research on the subject of bequest.In the first section,through the analysis of the legislative status and judicial status of the bequest subject in my country,it is pointed out that in judicial practice,the relationship between the bequests and bequestors are mostly grandparents(60%)and uncles and nephews(19%).My country's judicial practice has disputes over whether the subrogation heir is the bequestee when the subrogated heir survives.The second section,through the inspection and analysis of the extraterritorial legislation of the bequest subject(France,Germany,Italy,Portugal,Spain,Japan,South Korea,the Philippines,Ethiopia and Chile and other ten representative civil law countries,the same below),and get the legislative experience for reference.The third section is the legislative analysis and supplementary suggestions for the "Civil Code" and its judicial interpretation of the bequest subject.First of all,through analysis,it is believed that the legislative advantages of my country's Civil Code and its judicial interpretation are reflected in: the division of bequest capacity,the bequest capacity of minors,the scope of bequestees,the bequest capacity of testamentary witnesses and fetuses,and loss of right to bequeathed and other provisions;its legislative insufficiency is reflected in: it does not clearly stipulate the bequest capacity of the mentally unsound person,does not impose reasonable restrictions on the bequest capacity of those who have an unjustified relationship with the married bequest,and does not clearly stipulate the bequest capacity of fetuses and legal persons in the process of being established.Secondly,it sorts out the valuable legislative suggestions of Chinese scholars on the subject of bequest.Finally,in response to the aforementioned shortcomings,proceeding from our country's reality,taking into account the problems in our country's judicial practice of bequests,and on the basis of drawing on the experience of extraterritorial legislation and the legislative suggestions of Chinese scholars,we propose the following legislative supplement and improvement suggestions: First,add the rule of bequest ability,that is,the mentally impaired person has no capacity to bequeath after the declaration of a person with no or limited capacity for civil conduct and before the declaration of revocation;second,the rule of capacity to be bequeathed is added.First,the heir to the throne are alive,that the substitute heir participate in the distribution of the estate through the will,it is the will inheritance,not the bequest.Second,to clarify the bequest capacity of the fetus and the legal person in the establishment.The fourth chapter is the research on the types of bequests.The first section analyzes the status quo of my country's legislation and judicial status of the types of bequests,and points out that: First,although my country's legislation does not clearly conditional bequests,time-bound bequests,obtaining bequests,and replacement bequest.However,the aforementioned various bequests still exist in judicial practice,and because my country's legislation lacks specific provisions on the aforementioned types of bequests,it is difficult to apply the law.The second is that our country's legislation on burdened bequest is too simple to protect the interests of the parties.In the second section,through the inspection and comparative analysis of the extraterritorial legislation of the types of bequests,the legislative experience that can be used for reference is obtained.The third section is the legislative analysis and supplementary suggestions of my country's "Civil Code" and its judicial interpretation on the types of bequests.First of all,through analysis,it is believed that the legislative advantages of my country's Civil Code and its judicial interpretation include: there are rules on conditional and time-bound civil juristic acts,and the provision of burdened bequests;its legislative deficiencies include: one is not clear provisions for conditional bequests,time-bound bequests,acquisition bequests,and replacement bequest.The second is the imperfect rule of burdened bequest.Secondly,sort out the legislative suggestions of Chinese scholars on the types of bequests that have reference value.Finally,in response to the aforementioned shortcomings,proceeding from my country's reality,taking into account the problems in the judicial practice of my country's bequest,and on the basis of drawing on the experience of extraterritorial legislation and the legislative suggestions of Chinese scholars,the following legislative supplements and improvements are proposed: The first is that the conditional bequest is divided into the bequest with effective conditions and the bequest with the dissolution;the second is to clarify the validity of the conditional bequest that is illegal,violates public order and good customs,or is impossible;the third is to specify the validity of bequests conditional on the establishment or dissolution of marriage,the validity of the bequest on the condition that the bequest is made in a reciprocal will,and the validity of the bequest on the condition that the bequest is not transferred.Second,the rule of time-bound bequests has been added.The time-bound bequests is divided into the bequest with the initial period and the bequest with the final period.The period of the bequest with a time limit shall not exceed 20 years.Third,supplement the rule of burdened bequest.One is to clarify the effectiveness of of the bequest with burdens that violate the law,violate public order and good customs,and cannot afford equal burdens;the second is to add the scope of responsibility for the bequest of the bequest to perform the burden;the third is to add the rules that urge the bequest to perform the burden of the bequest.Fourth,newly added rules for obtaining bequests.Where the bequester expressly requires the obligor of the bequest to obtain something or the right to deliver the bequest,the bequest is valid.The obligor of the bequest shall have the responsibility to obtain the property or right and deliver it to the bequest;if the subject of the bequest cannot be obtained or the acquisition cost is too large,the reasonable value of the subject shall be paid.Fifth,the rule of replacement bequest has been added.The fifth chapter is the research on the effect of bequest.The first section examines the status quo of my country's legislation and judicial status on the effect of bequest.It is pointed out that: First,there are many cases where the parties have disputes over the legacies effectiveness(47.67%),which involves the revocation,invalidity and revocation of legacies.Second,the legal rules for the ineffectiveness of the bequest and the revocation of the burdened bequest are imperfect,which is not conducive to protecting the legitimate rights and interests of the parties.The second section,through the investigation and analysis of the extraterritorial legislation of the effect of bequest,draws legislative experience that can be used for reference.The third section is the legislative analysis and supplementary suggestions on the effectiveness of bequests in my country's "Civil Code" and its judicial interpretation.First of all,through analysis,it is believed that the legislative advantages of my country's Civil Code and its judicial interpretation include: the legal reasons for the invalidity of the bequest,the withdrawal of the bequest,the statutory reasons for valid bequests and effective bequests,and the provisions on the nature of the property rights of the effect of bequest have been deleted;but its the legislative deficiencies are: there are deficiencies in the rules of illegal,non-effectiveness,effectiveness(effective time,nature of bequest effectiveness,and object effectiveness of bequest),invalidation and revocation rules.Secondly,sort out the legislative suggestions of Chinese scholars on the effectiveness of bequest.Finally,in response to the aforementioned shortcomings,proceeding from the reality of our country,taking into account the problems in the judicial practice of our country's bequest,and on the basis of drawing on the experience of extraterritorial legislation and the legislative suggestions of Chinese scholars,we propose the following legislative supplement and improvement suggestions: First,supplement statutory reasons for illegal bequest.Bequest is illegal under the following circumstances:(1)Bequest established by agency;(2)Bequest recipients have no ability to be bequeathed;(3)State,collective or other people's property is used as the subject of bequest,except for the obtaining bequests;(4)The purpose of the bequest,or the additional conditions or burdens that violate the law,public order and good customs,or impossible to achieve,and the conditions or burdens are the only reason for the bequest to make a will.Second,modifications and supplements the statutory reasons for the ineffectiveness of the bequest.Under the following circumstances,the bequest does not take effect:(1)The bequestee is dead,declared dead or terminated before the start of the inheritance,the achievement of the effective conditions attached to the bequest,or the expiration of the attached period;(2)The bequest of a particular object is lost,damaged or unpayable due to force majeed causes such as earthquakes or floods before the start of succession.Third,add the effective rules of the bequest.The first is that the bequest takes effect when the bequestor dies;the second is to clarify the nature of the creditor's rights for the effect of the bequest;the third is to add the rule of the object effect of the bequest,that is,the effect of the bequest :(1)After the conclusion of the bequest,the bequest shall have the right of request to a third party as a result of the destruction,loss or loss of possession of the bequest;(2)After the conclusion of the bequest,the bequest shall have the title because the bequest is attached to,mixed and processed with other things;(3)The burden of the bequest.But unless the bequest has exercised the aforementioned rights or otherwise expressed his intention.Fourth,add and modify the rules on the invalidation and revocation of bequests.The first is to supplement the legal reasons for the invalidity of the bequest.The bequest is invalid in the following circumstances:(1)The bequest is abandoned;(2)The bequest is lost or damaged due to force majeure such as earthquakes,floods,etc.after the inheritance begins and before the bequest is paid;(3)The conditions for the release of the bequest with conditions or the end-of-term bequest have been fulfilled or the final term has expired.The second is to supplement the retrospective effect of the invalidity of the bequest,that is,the invalidity of the bequest shall be traced back to the beginning of the inheritance.The third is to modify and supplement the rules for revocation of bequests.If the bequestee with a burden does not perform the burden without justifiable reasons,the people's court may revoke the bequest at the request of the interested person,unless the bequest expresses otherwise.If the interested party who filed the revocation lawsuit is willing to admit the burden bequest,he shall obtain the bequeathed property and fulfill the burden;otherwise,the bequest shall become invalid.The sixth chapter is the study of the recognition and abandonment of bequests.The first section examines the domestic legislative status and judicial status of the recognition and abandonment of bequests.It is pointed out that: First,in cases where a person lacking civil capacity is a bequestee,the legal representative abandons the bequest and infringes the rights and interests of the bequest from time to time(accounting for 16.67%).The second is the reduction in the use of litigation,notarization,and oral and other explicit methods by bequeathees in cases where bequests are admitted(accounting for 54.48%).);In order to protect the rights and interests of the bequestee,the people's court recognized the presumption in implicit methods(such as possession,disposal of the bequested property,performance of the obligations attached to the bequest,etc.)to recognize the bequest(32.62%).This behavior of the court is progressive.However,in the case of abandonment of bequest,the bequestee adopts less express means(8.33%),and the bequest's silent behavior is recognized by the people's court as the overwhelming majority(91.67%)of the bequest,which is not conducive to protecting the bequest rights and interests of the bequest bequeathee.The second section,through the inspection and analysis of extraterritorial legislation on the recognition and abandonment of bequests,the legislative experience that can be used for reference is drawn.The third section is the legislative analysis and supplementary suggestions for the "Civil Code" and its judicial interpretation resulting from the recognition and abandonment of the bequest.First of all,through analysis,it is believed that the advantages of the previous Civil Code and its judicial interpretation are: there are agency rules for persons lacking civil capacity,the time limit for recognition and abandonment of bequests,and the rule of effectiveness of abandonment of bequests;its legislative deficiencies: Lack of rules for the exercise of the right of bequest of persons lacking civil capacity,unreasonable starting time and methods for the time limit for recognition and abandonment of bequests,unclear object of intention expression,lack of restriction rules for recognition and abandonment of bequests,and no effective rules for recognition and abandonment of bequests perfect.Secondly,it sorts out the legislative suggestions for the recognition and abandonment of inheritance scholars with reference value.Finally,in response to the shortcomings,proceeding from this reality,taking into account the problems in the judicial practice of bequests and gifts,and on the basis of absorbing the legislative experience from outside the territory and the legislative suggestions of recognized scholars,the following suggestions for supplementing and improving the legislation are put forward: First,supplement rules for the exercise of the right of bequest of persons lacking civil capacity.If the bequestee is a person with no civil capacity,the bequest shall be recognized by his legal representative;if the bequestee is a person with limited civil capacity,he may recognize the right to bequest alone;The legal representative of a person with no capacity for civil conduct or a person with limited capacity for civil conduct may,with the permission of the people's court,represent him in abandoning his Bequest.Second,revise and supplement the rules on the time limit,method and intention of the recognition and abandonment of bequests.First,after the start of the inheritance,the bequestee will recognize or abandon the bequest within 60 days from the date when he knows or should know the bequest,when the conditions are fulfilled,or when the initial period expires.Second,if the bequestee fails to express the intention to abandon the bequest within the aforementioned statutory time limit,it shall be deemed to have admitted the bequest.The third is the expression of the intention to recognize and abandon to the bequest,which should be made to the bequest obligor and other bequest interested parties;when there is no bequest interested party,it should be made to the civil affairs department.Third,added rules on the limitation and effectiveness of recognition and abandonment of bequests.First,the recognition and abandonment of bequests: not for part of the target;not conditional or extended period,otherwise it is considered not to have made the relevant meaning;may not be revoked,except for the meaning of defects.Second,the ownership of the property involved in the abandoned bequest shall be determined in the following order: first,the bequestee of the substitute bequest;the second is the other co-bequestees of the joint bequest,the third is the bequest with the right of benefit,the abandoned right of use and ownership are merged,and the fourth is the heritage.The seventh chapter is the study of bequest payments.The first section examines the current legislative and judicial status of the bequest payment in my country,and points out that in judicial cases: First,there are few cases where the bequestor clearly specifies the obligor of the bequest payment(accounting for 2.33%).The second is about the cost of paying the bequest,or the bequestor clearly bears the inheritance(33.33%),or the people's court decides to be borne by the bequestee(66.67%).Third,my country's legislation lacks rules on the payment of bequests and the order of bequest deductions,which can easily lead to disputes.In the second section,through the investigation and analysis of the extraterritorial legislation of the bequest payment,the legislative experience can be used for reference.The third section is about the legislative analysis and supplementary suggestions on the "Civil Code" and its judicial interpretation on the bequest payment.First of all,through analysis,it is believed that the advantages of my country's Civil Code and its judicial interpretation are:there are provisions on the obligor of the bequest,and the execution of the bequest shall not hinder the settlement of the taxes and debts that the bequestor should pay in accordance with the law,there are both legal inheritance and testamentary inheritance,tax and debt settlement rules at the time of bequest,special reserve rules.The shortcomings are: the external and internal order of the bequest payment is not clearly specified,and it lacks the content of bequeathed to paid expenses and the subject of the burden,guarantee and deduction rules for bequeathed payment.Secondly,it sort out the legislative suggestions of Chinese scholars regarding the bequest payment which has reference value.Finally,in response to the aforementioned shortcomings,proceeding from the reality of our country,taking into account the problems in the judicial practice of our country's bequest,and on the basis of drawing on the experience of extraterritorial legislation and the legislative suggestions of Chinese scholars,we propose the following legislative supplement and improvement suggestions: First,clarify the order of bequest payments.One is that in the process of estate processing,the bequest should be paid after the inheritance expenses,the legal portion,and the testator's living debts have been paid off.Second,when the inheritance is not enough to pay all the bequests,the payment shall be made in the following order: the bequest that the bequestor said should be given priority;the support bequest;the educational bequest;the bequest of specific objects that make up the heritage;other bequests.Bequest of the same order shall be paid on a pro rata basis.Second,clarify the content of the bequest payment and the bearer.First,the cost of the bequest payment includes: reasonable costs to obtain the bequest subject,the necessary expenses in order to obtain the fruit of the subject or to manage the subject.The second is that the expenses paid by the bequest shall be borne by the heritage,but shall not damage the legal portion;the tax and fee for the registration of the change of the bequest property shall be borne by the bequestee;unless otherwise stipulated in the will.Third,add the guarantee rules for bequest payments.That is,a bequest with conditions of entry into force or a bequest with a period of starting time,within a period during which the conditions have not been fulfilled or the period of the beginning of the period has not yet been established,the bequestee may request an appropriate guarantee from the bequest payer.Fourth,add the deduction rules for bequests.First,if the estate has been divided and the bequest fulfilled without a procedure for the settlement of the estate debt,the bequest may be deducted for the insufficient portion if the estate is not sufficient to pay off the full estate debt and preserve the legal portion.Second,if the bequest is required to be deducted because the estate debt is paid off or because the legal portion is made up,the estate debt shall first be paid off by the legal heir within the scope of the estate he received;the unsettled estate debts shall be paid off by the testamentary successor within the scope of his inheritance;finally,the bequestee shall deduct within the scope of his income.When multiple different bequests need to be deducted,they shall be carried out in the following order: ordinary bequest;bequest of specific objects that make up the heritage;educational bequest;support bequest;bequest that the bequestor expresses the priority to pay.Bequest in the same order shall be deducted in proportion to the value of the bequest obtained;unless the testator expresses otherwise.