Research On Requesting Right Of Recovering Inheritance

The second article of LAW OF SUCCESSION OF THE PEOPLE'S REPUBLIC OF CHINA regulates:Succession begins at the death of a citizen. The 29th article of PROPERTY LAW OF THE PEOPLE'S REPUBLIC OF CHINA regulates:Property gained owning to inheritance or legacy has legal force when the inheritance or legacy begins. So at the moment of inheritance, the successor gains all the property's ownership of the decedent. But such ownership is merely a de jure ownership; the successor does not possess every estate in fact. So it is common that the estate is occupied by other people. To protect the right to the inheritance of the successor, it is necessary to learn from other countries and perfect our country's institution.Besides the preface the article is divided into five parts.The first part contains three aspects of the requesting right of recovering inheritance. It includes its history, definition and function. The requesting right of recovering inheritance is derived from the "hereditatis petition" in Roman law. The "hereditatis petition" is a proceeding that the successor could institute an action based on his or her heirship.Other countries and districts follow this institution. When it comes to the concept of the requesting right of recovering inheritance, there is no uniform opinion. In my view, the requesting right of recovering inheritance is an independent requesting right. When the successor's heirship is violated, he enjoys the right of reinstatement. Besides, the requesting right of recovering inheritance has three functions. First of all, it can protect the interest of the successor. It can conserve the resource of litigation and maintain social peace.The second part is the nature of the requesting right of recovering inheritance and its relationship with other requesting rights. With reference to the nature of the requesting right of recovering inheritance, there is three theories which are "heirship reinstatement theory","inheritance reinstatement theory", "heirship confirmed and inheritance reinstatement theory". I am in favor of the "independent right theory" of the "inheritance reinstatement theory". As to the relationship among the requesting right of recovering inheritance, ownership and compensation, I think the successor can choose any one of them to protect their interest.The third part is about the provisions and reviews of the requesting right of recovering inheritance in the countries and districts of the Continental law. Only through by analyzing and studying the provisions of these countries and districts can we lay the theoretical foundation for the perfection of this institution.The fourth part is the composition and exercise of the requesting right of recovering inheritance. Its composition include four elements.Firstly,people have no right to inherit in fact occupy the estate.Secondly,the inheritance of the person in possession holds no legal basis for the estate.Thirdly,the people who institute a suit shall be heirs at law. Fourthly, the right is violated because illegal successor deny their heirship. As to the exercise of requesting right of recovering inheritance, I will discuss its subject, methods and effect.The fifth part is the perfection of the requesting right of recovering inheritance. I will analyze the deficiency of our country's law about this institution. According to the legislation of foreign countries and theoretical study, we can find how to perfect this institution in our country and draw up new provisions of law.