A Study Of Heritage Discretion

According to Article 14 of the inheritance law,the right of discretionary distribution of inheritance is different from the legal inheritance depending on a certain blood relationship or marriage relationship.Discretionary distribution requires the obligee to form a certain supporting relationship with the decedent before his or her life,which is different from the inheritance right.Discretionary distribution of the right to inheritance plays a perfect and supplementary role in legal inheritance,but due to the imperfect and unclear legislation,many details can not be relied on in judicial practice.At the time of the revision of the civil code,it is imperative and urgent to strengthen the discussion of the right of inheritance.This paper is divided into five parts,as follows:The first part is the introduction.The introduction part mainly introduces the background and significance of the topic,the research trends at home and abroad,the main research methods to be adopted,the research focus and possible innovations of the topic.The second part analyzes the current situation of heritage discretion from two aspects of legislation and justice.In terms of legislation,by interpreting Article 14 of the inheritance law,it is clear that the subject of discretionary power distribution is a person other than the legal heir,which embodies the presumption of the will of the heir by law and the principle of the consistency of rights and obligations;the interpretation of article 1131 of the draft civil code is based on its modification of Article 14 of the inheritance law and clarifies the significance of this modification.In the judicial field,332 cases were collected and sorted out: the subjects of discretionary points were mainly nephew children,heterosexual cohabitation partners,stepchildren who did not form a supporting relationship,adopted children who did not go through the adoption registration,etc.,among which the heterosexual cohabitation partner was the most controversial one.In the judicial judgment,the distribution of the discretionary share of heritage is too arbitrary.At last,the author makes a comment on the legislation and judicature.The legislation is too general for the two types of subjects,and the share of discretionary points is difficult to grasp.The judicial reasoning is not enough,there are differences on the determination of discretionary points requested by the illegal subjects,and the distribution of discretionary points is arbitrary.The third part analyzes the subject of the right of inheritance.The basis ofestablishing the subject of discretionary inheritance mainly includes four aspects:respecting the will of the inheritee,the consistency of rights and obligations,expanding the scope of the inheritor and broadening the form of pension.In the current inheritance law,the conditions for discretionary division of inheritance are clear.In the chapter of statutory inheritance,the conditions for obtaining discretionary division of inheritance are clearly prescribed by law.The deprivation of discretionary division should also have legal reasons.The deprivation of discretionary division can apply to the legal reasons for the loss of inheritance.For such subjects as bigamy or those with spouse living together with others,the management theory and practice are all right Whether it can divide the heritage or not is controversial,but the illegal identity is not the legal reason to deprive the inheritance right,so the illegal identity of the subject should not be the obstacle to divide the heritage.The fourth part discusses the determination of discretionary share of heritage.Due to the uncertainty of the written law and the complexity of the reality,it is difficult to specify the share of discretionary inheritance.The law inevitably defines the share of discretionary inheritance as "appropriate",but it should also clarify the factors that should be considered as "appropriate".In the case of a successor,the share of the heritage that the discretion of the discretion of the divided person shall not exceed the share of the successor.In the case of no successor,the discretion of the divided person shall be requested,and the legislation of other countries shall be examined,and it is proposed to avoid the nationalization of the heritage,and the discretion of the divided person shall not be excluded to share the whole heritage of the successor.