On The Bequest To The Support Agreement System

The legacy-support agreement is a kind of agreement signed between supported party and supporting party. In accordance with the agreement, assumes the duty to support the testator in his or her lifetime and attends to his or her interment after death, in return for the right to legacy. The legacy-support agreement system is an important civil legal system which stipulated in The Inheritance Law of the People's Republic of China. It provides the legal protections for disadvantaged people who need to be supported in the way of signing the agreement and helps to solve the problems about the support of old ages.In our country, the legacy-support agreement appeared in ancient times, which could be tracked back to Ming Dynasty. The legacy-support agreement of Ming Dynasty is limited in the scope of kinsmen, so it is very different from our contemporary system. From Ming and Qing Dynasty to the founding of New China, the application and adoption of legacy-support agreement are not very widespread. After the founding of New China, required by the reality needs of the rural old-age support, the contemporary legacy-support agreement developed gradually on the basis of Five-guarantee system. Even at that time, the legacy-support agreements are used in a method of customs, not yet written into law. Until The Inheritance Law of the year 1985, the legacy-support agreement system has been officially regulated. Though the legacy-support agreement system is based on the Five- guarantee system, they are different legal systems. The legacy-support agreement is also different from legacy, and death-cause bestowal. It has its own legal features: the feature of consensual, the feature of compensatory, the feature of promissory. The legacy-support agreement is of great significance for solving the old-age supporting problem. Because of the limited economic level, our social security system is not so flourishing as western developed countries. Our country couldn't afford all the needs of the persons who neither can work nor has a source of income. So, the legacy-support agreement signed between citizens is of great help to lighten the burdens of society and is favorable to improve the conditions of disadvantaged people. That could also present socialist spiritual civilization. Though the legacy-support agreement contributes a lot and widely used, the clauses that regulate this system are very few. So it is hard to avoid the legal holes. First of all, it is unreasonable to limit the qualifications of subjects. According to The Inheritance Law, the statutory successors couldn't be the supporting party of the legacy-support agreement for the reason that statutory successors have legal obligations in maintaining their parents. These obligations can't be appointed or transferred to others. But in real life, supporting old-ages relates to many complex relationships. Perhaps some of the statutory successors can only afford either expenses or services, some of them may afford neither. The olds may choose to live with some of their children because of the consanguinity and sign the agreement. At this time, limiting the qualifications of supporting party just reduces the chances that old persons could be supported. And for the same reason, when the organization as the supporting party, it's needn't to limit the qualification in the scopes of organization under collective ownership. Second, The Inheritance Law hasn't prescribed the form of the legacy-support agreement. So many agreements are covenanted in oral style. In the process of implementation, it is easy to cause disputes but not easy to obtain the evidence. In practice of law, different courts may make different judgments. The same situation but different judgments, is it fair to parties? China is a country that denies the universal validity of the legal precedent. Facing of the paradoxical judgments, the courts come into an embarrassing position. Third, obligations and rights of the legacy-support agreement are described so generally on law in force. "To support the alive and to bury the death" is highly abstract and goes against the realization of rights and obligations. Law should classify what rights and what obligations the supported party and supporting party would have. When classifying, methods of summarizing and listing can both be adopted. This can make parties know what their roles are and what they should do according to the agreement. Fourth, the law in force is lack of regulations on origin and remedy about cancellation of the legacy-support agreement. When an agreement is signed, it is possible that this agreement can not able to be performed or there is no need to perform it or one party is not willing to perform the agreement. Because it is related to personal right, legacy-support agreement is not suitable for coercive execution. Under these situations above, to cancel the agreement is the best way. Once it is canceled, the means of relief will play an important role in guarantying parties' rights and interests. But margin in law makes that the victims enjoy no remedy and defaulting party escape from punishing. It is not according to justice. Thus, legislator must prescribe reasons and remedies for cancellation. At last, the character of legacy-support agreement is very important for it is related to legislative system and the position legacy-support agreement occupying in the whole legal system. But in China, law in force gives no definition of its character. In theoretical field, there are contract theory, heritage theory, compromise theory, donation theory and dualism theory. All these theories have their own rationalities, but not exactly accord with the specialty of the legacy-support agreement. So legislator should define the characters of it. Just because there are so many legal defects in the legacy-support agreement, it is very valuable to study.In foreign country, there is a similar legal system called contract of succession which is more developed and more perfect. The author adopts comparative method, to introduce foreign contract of succession. Foreign legislation has three attitude of contract of succession: negative, positive and compromise. Roman law, France and Italy as the representative of the negative attitude, contract of succession is expressly prohibited in these countries. One of the reason is that there is a principle that "the freedom of making will can't be limited by contract before the death of a person" in Roman law, and it against contract of succession. Second, the right of making will was considered as a kind of public power in Roman law, so nobody can limit the execution of public power by a private agreement. It is so hard for us to use for reference. Germany, Switzerland as the representative of the positive attitude, contract of succession is provided in the section of succession in civil law. It is provided in special section rather than described in individual clause. The contents include the subjects of contract of succession,the form of will adding notarization,the supported party's rights of dispose property and the limited of the rights,the pleading rights and remedies of beneficiary,the end of contract of succession, the lawsuit of contract of succession,deduction of property and so on. In the country which hold positive attitude, beneficiary can get the right of succession following the contract. Contract of succession and Testamentary Succession and Statutory Succession constitute a direct cause of the right of succession. Contract of succession is fairly complete in both contents and systems, providing a good legislative reference for the perfection of the legacy-support agreement. The countries hold compromise attitude, UK and America as the representative, they have complete regulations of contract of succession, but there are a huge difference from the countries which hold positive attitude. They consider contract of succession as an ordinary contract that agreement's conclusion and performance and remedy all follow the regulation of contract law. So beneficiary can't get the right of succession by contract of succession. Generally speaking, foreign contract of succession system has clear regulations to avoid many disputes in the process of applying.By contrasting between contract of succession and the legacy-support agreement, it is easy to identify the defects of the legacy-support agreement. These defects make the legal suggestions more targeted. Because our country has the conditions to transplant contract of succession, the author suggest transplant some of the contents of contract of succession. Because the nature of the legacy-support agreement relates to what stylistic rules will be adopted in the legislation, the author makes a deep analysis of the nature and denies contract theory, heritage theory, donation theory and dualism theory, but affirms compromise theory. The author approves that the legacy-support agreement has the nature of contract and inheritance. As the rights and obligations of the legacy-support agreement mostly relates to take care of the old persons and relates to inheritance, so it will be appropriate to prescribe it in the Inheritance Law. Meanwhile the author suggests establish a special chapter to prescribe the legacy-support agreement system as an individual part. After deciding the position, the author brings forward some legal suggestions aiming at the disfigurement and the legislation's vacancy of the legacy-support agreement system. The range of subject in the legacy-support agreement should be enlarged. Once people need others to support, it can be the supported party of the agreement; and once people or organization has the ability to support and is willing to support others, it can be the supporting party. The agreement is better to be in written form but notarization is not requisite. Non-written legacy-support agreement should be legitimate when it was formed before the issue of law meanwhile there are enough evidences to prove its existence. Rights and obligations in the agreement should be perfected. Supported party will enjoy the right of be supported, the right of cancellation under certain circumstance and the right of petition on damage; meanwhile it should burden the obligation of observance and the obligation of not to disposition related property unilaterally. The supporting party has the right of inherit the heritage, the right to caveat and register the right of pleadings, the right to cancel in certain circumstance and the right to claim to restitute; meanwhile it should burden the obligation to support and bury. When the parties have consensus equally and of their own willing, the legacy-support agreement can be canceled. And under certain circumstance when one party breaches or there is fraud, intimidation, the counter-party has the right of annulling. And because the five-guarantee system has consanguineous relationship with legacy-support system, it can be brought into the legacy-support agreement system. Other problems when performing, contract law could be referred to.