Research On The System Of Selection And Appointment Of Legacy Administrator

Articles 1145 and 1146 of the Civil Code specify the order and specific way of producing the estate administrator,but this is only the principle provision of the legislative level,and there are still some disputes when the specific application exists.The appointment of an administrator herein does not refer only to the administrator appointed by the court,but also to the administrator arising through other means.The selection and appointment of the administrator is not only about the way of the administrator,but also about the scope of the subject,the qualification requirements,the appearance of rights.Since the official implementation of the Civil Code,local courts actively explore the judicial application of the estate manager selection system;different types of subjects actively study the estate management system based on their industry characteristics,and issue corresponding operation guidelines and roster of heritage managers,but these contents still need time and practice inspection and polishing.As a general law,the Civil Code only provides the corresponding content in principle,and the practice of giving more operable rules and procedures to exert its subjective initiative deserves recognition.In view of the detailed selection system of estate administrator,the circumstances of testamentary inheritance and legal inheritance shall be considered respectively,and the qualifications of professionals and non-professionals shall be determined respectively.In the case of testamentary inheritance,the decedent should be respected and provide a guarantee for the free choice of the testator.Under the circumstances of legal inheritance,the smooth development of the estate management and disposal shall be guaranteed,and the legitimate rights and interests of the relevant persons shall be safeguarded.The supporting system should be improved to realize the closure and rigor of the heritage manager selection system.The main text is divided into four parts.The first part is the basic theory of the heritage administrator selection system.Firstly,the summary of the administrator is analyzed.According to the legislative model in the Civil Code,the definition of the administrator is the administrator in a broad sense.The relationship between the estate management system,executor,estate custody,will trust and it is analyzed,so as to provide theoretical support for the discussion of the selection system of the estate administrator.Secondly,the paper analyzes the connotation of the heritage administrator selection system,including the qualification,the subject and procedure of the heritage administrator.Finally,the influence of the legal status of the estate administrator is analyzed.Because the legal status of the administrator proves the basis of the source of his rights,determines the duties of the administrator,and affects the subject and specific procedures of the selection.Combined with the legislative purpose and judicial application,it should be considered that the administrator of our estate has an independent legal status,so it should be adopted in principle.The second part is the current situation and problem analysis of the selection system of heritage manager in China.First of all,the provisions of the Civil Code of China are analyzed and interpreted combined with the legislative reasons,and the controversial problems are expounded.Secondly,the relevant provisions of the operation guidelines issued by different types of subjects are introduced and evaluated,and the role that various industry subjects should play in the selection system of heritage managers and the procedures that should be followed when applying.Finally,combined with the above two parts of the summary analysis,and through the civil code after network involving administrator and determine the referee case,concluded that the current estate administrator selection system applies the following problems: procedure chaos,civil affairs department or the village committee in the selection attitude is negative,give up the successor as administrator referee,the court is conservative,lack of administrator qualification regulations,creditors’ interests to protect the imbalance,administrator selection time is unclear,lack of supporting system.The third part is the external investigation and reference of the heritage manager selection system.In view of this part,we mainly investigate and analyze the qualification of the heritage manager and the selection mode,and the type of the selection mode is divided into binary selection mode and three-way selection mode.The contents involved mainly include the emergence of the estate administrator,the scope of the subject,the qualification requirements and the appearance of the rights and other supporting systems.The fourth part is the refinement and path construction of the selection system of heritage managers in China.On the basis of the summary of the foregoing parts and the different contents of different situations,this part believes that the refinement of the selection system should consider the will inheritance and legal inheritance respectively,and the qualifications of professionals and non-professionals should be determined respectively.First of all,in the case of testamentary inheritance,we should respect the meaning autonomy of the decedent from the aspects of improving the qualification of the estate administrator,giving full play to the role of the notary office,and provide a guarantee for the free choice of the testator.Secondly,in the case of legal inheritance,the smooth development of heritage management and disposal should be guaranteed from the aspects of the case classification mechanism,the establishment of temporary estate manager,the appointment time and the selection and appointment of the court as the bottom line,so as to safeguard the legitimate rights and interests of the relevant persons.Finally,the supporting system should be improved from the aspects of giving the heritage administrator certain rights,increasing the announcement system before the selection and appointment of the estate manager,and improving the adjustment procedures: the resignation,resignation and accession,so as to realize the closure and rigor of the selection and appointment of the heritage manager system.