The Research On Waiver Of Inheritance Right System

Waiver of inheritance right system is an important part of the inheritance law system, because of its direct relationship to whether the inheritance can be fulfilled, and whether the estate ownership could be transferred or not. The stipulations of current "inheritance law" and "the supreme people’s court on the implementation opinions on some issues of inheritance law" for Waiver of inheritance right system are too principle and too abstract, only scattered nine provisions, these provisions are lack of clarity and systematic. Some important relevant system has not yet been established, therefore there is lack of legislation. Due to a lack of maneuverability, judicial practice about the dispute caused by waiver of inheritance right is not rare. Based on the comparative research on scholars’modification suggestion to our waiver of inheritance right system, the author analizes the theoretical basis, the existing defects of the system, and finally comes up with improvement suggestion, in order to provide some references for modification of our national "inheritance law".This paper consists of two parts-introduction and the main text. The introduction briefly introduces the social background of modification of "inheritance law", and the necessity and importantance of reaching waiver of inherence right system; The main text is divided into four parts to discuss the details.The first part is the summary of legal system of waiver of inheritance right. Firstly define the legal concept of waiver of inherence right system, then research and analysis the nature of behavior of inheritance and its target. After introduction and comparison of the existing three theories, the author thinks that "the inheritance under segmentation theory" is the most reasonable explanation of target of waiver of inheritance right, also is the most suitable theory to solve the contradictions in the waiver of inheritance right system.The second part is the content of waiver of inheritance right system. By comparison with introduction of foreign legislation, the current rules of inheritance law in our country, based on the analysis of the main body of waiving inheritance right, time, time limit, method, limit, effectiveness, the author analyzes in certain cases, legal representative of a person who has no capacity for civil conduct or limited capacity for civil conduct may waive the inheritance right on behalf of the successor; clairfies the timing and corresponding period for waiving inheritance right, and requires that the successor shall express through proper way to proper person or organization; At the same time expressly disclaims inheritance shall not attach any conditions, or partial waiver; Finally further analyzes retroactivity of the validity of waiver can be dated back to the succession began, the affect to the successor itself, the legal obligation to continue manage the heritage before other successors accept it, and analyzes in details waiver can not be cancelled/withdrawn except in the case of affected by fraud or coercion.The third part is the relevant stakeholders interests conflict. It focuses on two aspects-spouse and creditors. The author thinks that, the purpose of waiver of inheritance right system is to establish heir mean freedom principle, whether to waive or not should not be interfered by others, furthermore, waiver does not cause any decrease of the successor’s existing property, but stop an increase of his/her property. This should distinguish from the revocation right system for creditors against the debtor of malicious reduce its original responsibility property. Therefore, the waiver of the successor does not need consent of his/her spouse; and can not be revoked by the creditors. If the successor maliciously waives inheritance and damages the interests of creditors, the creditors may apply to the people’s court for this behavior is invalid, except that the successor can provide corresponding guarantee.The fourth part is legislative proposals to improve the system of waiving inheritance right. The author respectively proposes legislation suggestion from legislation system arrangement, the specific content, and relevant stakeholders protection aspect.