Study On Requesting Right Of Recovering Inheritance

Requesting right of recovering inheritance is an important system of inheritance law,and the Article8of the “Law of Succession of The People’s Republic of China” regulatedas follow:“The time limit for institution of legal proceedings pertaining to disputes overthe right to inheritance is two years, counting from the day the successor is or should beaware of the violation of his right to inheritance. No legal proceedings, however, may beinstituted after the expiration of a period of20years from the day succession opens“.Although the Article8contains the subject of rights, components, general elements, legaleffect and elimination of right, it’s not enough to provide answers to disputes, and almostunable to play its normative force and effect because of its poor content. According to thedisputes, there are different kinds of theory, such as “assemblage right”,“formation right”and “independence right”. The attitudes from judicial practices are also different, and theyoften make confusion between the requesting right of recovering inheritance and thepartitioning of the estate. All of the above confusions will be a big trouble for thelaw-study and law-executor.The paper will analysis the pros and cons of the different theories, clarify the legalrelationship and concurrence of right of claim, discuss the necessary of the requesting rightof recovering inheritance, and suggest some legislation proposals based on Requestingright of recovering inheritance in Taiwan, and hope the proposal will be usable to make theLaw of Succession more perfect.Besides the introduction and conclusion, the paper is divided into four parts.First part is the general overview of the Requesting right of recovering inheritance,and this part will mainly analysis from the following four aspects, the concept, historicalevolution, normative force and time point being infringed. Since from Roman law, the right of recovering inheritance had been accepted by continental law system countries, butthere’s no clear concept which was widely approved. Requesting right of recoveringinheritance can protect the rights of true heirs and save litigation resources, but it’s difficultto verify the time point being infringed under the direct succession legal system, and that’salso the fundamental reason to distinguish it from requesting real right.The second part is the nature of requesting right of recovering inheritance and thispart will discuss from the nature, general elements and concurrence with requesting realrights. Since from the “Civil Code of the Qing Dynasty”, the requesting right of recoveringinheritance has been existed and developed for hundred years, the debate about it’s naturehas never been stopped, and in the authors opinion, the independence right theory is thebest. Combine the theory of scholar and practices, the author conclude the five generalelements of requesting right of recovering inheritance at last. The relationship between therequesting right of recovering inheritance and the requesting real rights, the disputes on thetheory is the concurrence of legal provisions or the concurrence of requesting rights innature, and the paper will chose the second one.The third part is the statute of limitation of the requesting right of recoveringinheritance, and the author will introduce it from the nature, effectiveness and relationshipwith acquisitive prescription. As we know, the statute of limitation can’t solve theownership of property directly, so this paper will focus on the combination with acquisitiveprescription to construct a complete system of property change.The fourth part is the protection status and legislation choice of inheritance right. Thispart will analysis the shortage of the current legislation and compare the will succession inAnglo-American Legal System with the requesting right of recovering inheritance inContinental Law System. Finally, some legislation advices will be suggestedwith reference to the legislation in other countries.