Research On The Perfection Of Bequest With Obligation In My Country

In the 18th century BC,the word "Bequeath" appeared in the "Hammurabi Code",which means that the deceased’s rights and interests in the testament have been recognized.This is also the source of the well-documented system of bequests with obligations.The acceptance of the testator’s gift by a person other than the state,collective organization,or legal inheritance becomes the content of the obligatory bequests.Previously,although Article 21 of the "Inheritance Law of the People’s Republic of China"(hereinafter referred to as the "Inheritance Law")confirmed the obligatory bequest,it did not form a complete system.In practice,for reasons such as fulfilling their unfulfilled wishes,protecting the interests of related persons,and making their inheritance effective,many disputes of obligatory bequest will arise.In judicial practice,there are large differences in the judgments of different courts for such disputes,and there are differences in the determination of the obligatory bequest and the application of Article 21 of the Inheritance Law."Civil Code of the People’s Republic of China",which I will refer to as the "Civil Code" below.Article 21 of the "Inheritance Law" became Article 1144 of the "Civil Code",but There have not been any changes to the content.In order to solve the problems in judicial practice as soon as possible,it is necessary to improve the obligatory bequest system.In this regard,this thesis analyzes from five parts:The first part introduces and raises questions from two cases: Huang Shexing’s inheritance dispute and Zhang’s bequest and support agreement dispute.In both cases,life and death are obligatory and bequests are attached.The former is deemed to be a obligatory bequest,and the latter is regarded as a bequest.It is recognized as a bequest and support agreement,but all of them apply the legal provisions related to the obligatory bequest,Article 21 of the Inheritance Law,and the Supreme People’s Court Opinions on Several Issues Concerning the Implementation of the "Inheritance Law of the People’s Republic of China"(hereinafter referred to as " "Inheritance Law Implementation Opinions")Article 43 as the basis for the judgment.So what is a obligatory bequest,what is the difference between it and a bequest and support agreement,whether it has independent value,and how to interpret the phenomenon that the court confuses the two.The second part is to study the basic principles of the obligatory bequest system.Analyzing the similarities and differences between the obligatory legacy and the obligatory will,the bequest and support agreement,and the death gift,etc.,it is found that there are differences in the method of formation,the effective time,the effectiveness,and the unique attributes.It does have its unique characteristics and cannot be Replaced by other systems.Further explore the legal relationship between the legatee,the heir and the beneficiary to clarify the relationship of rights and obligations of the three and the transfer mode of the property rights of the bequeathed property,so as to pave the way for the following theories.The third part analyzes the loopholes in legislation and the operational difficulties in judicial practice.First of all,the relevant legal articles on obligatory bequest are articles 16,21,25 and 27 of the "Inheritance Law",which are general and sloppy but not specific.Secondly,in Wolters Kluwer,with the keyword "obligatory bequest" and Article 21 of the "Inheritance Law" as the qualification,496 cases nationwide from 2008 to 2019 were retrieved,and the mandatory will judgment documents were excluded.The first instance and second instance judgments of the same case were merged,and 199 legal documents related to bequests with obligations were finally determined as the research objects.Through analysis,it is found that the legislation mainly has problems on the following four aspects: the specific elements of the obligatory bequest are unclear,the legal effect of the obligatory bequest is unclear,the lack of guarantee of the performance of bequest obligation,and the liability for the consequences of breach of the obligatory bequest are not specific.In the fourth part,in order to solve the problems in the legislation,this article adopts the comparative research method.The civil law system has relatively mature research and legislation on the bequest system.This article will study the construction and legislative results of the obligatory bequest system in Germany,France,Japan,Taiwan,etc.Compare the differences of the above four regional legislations from the content of the obligation,the obligations and scope of obligations of the bequestee,the legal effect of the obligatory bequest,the person who has the right to perform the request,and the legal consequences that caused by the unperformance of the obligation.Based on the comparative analysis of the relevant legislation in the above-mentioned regions,it is concluded that the provisions of German law and Japanese law have a relatively high degree of matching with our country’s national conditions and social background.The content of the law is worth learning and absorbing,and lays the foundation specific legal provisions will be made for the following text.The fifth part puts forward corresponding legislative suggestions for perfecting our country’s obligatory bequest system.In order to effectively solve the current problems in judicial practice,first determine the concept of the obligatory bequest system at the macro level,and then design the law from the micro level,clarify the specific elements of theobligatory bequest,determine the legal effect of the obligatory bequest,increase the guarantee of the obligatory bequest,and determine the responsibility of the violation of the obligatory bequest.