| In October 2014, the Fourth Plenary Session of the 18 th Central Committee of the Communist Party of China had decided to comprehensively advance the law-based governance of the country, meanwhile planning to make the Civil Code of China. The draft of The General Principles of the Civil Code was released to the public to solicit their opinions in April 2015. The modification of the Law of Succession of the People's Republic of China is underway, and it is a significant part of the specific provisions of the Civil Code of China. As an important part of the Law of Succession, the system of the partition of the inheritance plays an important role on protecting the interests of the coparceners, the creditors of decedent and the creditors of successors. However, the existing Law of Succession is relatively rough on the system of the partition of the inheritance, especially there are still a lot of shortcomings at the subject, object, time, basis, methods and effect when partitioning a decedent's estate. For instance, there are lack of the clear provisions about these issues such as the subjects of partition of the inheritance should be the successor, the successor's property gotten as the decedent's gifts when the successors living apart, starting a business or getting marriage should be classified into the scope of the inheritance for the partitioning process, the time limitation when the coparceners want to partition the decedent's estate, the specific guide for the successors to execute the decedent's will and the agreement among the c in the partitioning process, the priority for the special heir to partition and get the inheritance, the special partitioning methods for some special heritage such as the enterprises or heirloom, the coparceners' responsibility for the heritage flaws after the partitioning of a decedent's estate and so on. According to the deficiency of the legislation, this paper summarizes the legislative features and value orientation basing on the historical evolution of heritage segmentation system, draws useful experience from the comparison of foreign legislation, and learns the previous research results of scholars in the draft legislative proposals. After that, in consideration of the reality of our country, put forward the specific legislative proposals to improve the legal norms of the partition of the inheritance in the Succession part of the civil code of China, and to provide a theoretical reference for the judicial organs. Therefore, this thesis topic has important theoretical significance and practical application value.In addition to the introduction, this paper is divided into five chapters, about 180,000 words.The first chapter is the basic theory of the system of partition of the inheritance. This chapter is divided into two sections: the definition of the partition of the inheritance and the definition of the legal system of the partition of the inheritance. In this chapter, partition of the inheritance is a legal act that the coparceners distribute the decedent's estate basing on the will or the legal provisions to end the co-ownership of coparceners. The partitioning a decedent's estate has some features as following: the integrity of the decedent's estate needed to partition,the optional partitioning timing for each coparcener, the diversity of legal basis for the partitioning, the particularity of the partitioning methods and the dichotomy of the partitioning effect. When partitioning a decedent's estate, it must meet the following preconditions: the first one is the death of the decedent, the second one is decedent's estate existing, the third one is at least two coparceners claiming heritage, and the fourth one is the certainly qualifications of the successors, the clear scope of the inheritance and the determined share of the joint heirs.The legal system of partition of the inheritance is made up of the legal norms which regulate the inheritance relationship between coparceners. The main content of the legal system of partition of the inheritance is six aspects about the subject,object, basis, time, method and effect. It has three major functions of keeping the distribution of the heritage fairly and orderly, ensuring the benefits of the successors and the third people involved in the succession, and enhancing the utility of heritage.The second chapter is the historical evolution of the legal system of partitioning a decedent's estate. This chapter is divided into two sections, the first section is the historical evolution of the legal system of partitioning a decedent's estate in foreign country; the second section is the historical evolution of the legal system of China's partition of the inheritance. In this chapter, during the period of Rome Law, a completely sets of the regulations involved in the system of partition of the inheritance has been made. Compared with the modern succession law, the subjects who had the right to partition a decedent's estate is more extensive, not only the successor but also other persons who have the right to obtain the estate.The object that the successors needed to partition included both the positive heritage and the negative heritage. After the beginning of inheritance, the successor can request or litigate the division of the estate in any time, and the partitioning should follow these principles:respecting the decedent's will, distributing the heritage evenly and enhancing the utility ofheritage. The methods to divide the heritage were diverse, partitioning the material estate in principle, compensating, discount or establishment of pledge as a supplement. In the period of Germanic Law, if one of the parents was dead, especially there was real estate heritage, the coparceners became the co-owners of the real estate and not to split the heritage immediately.Only in special conditions, the successor could claim to partition heritage, in the meantime,the property of the wife and the husband should be separated firstly. When partitioning the estate, the principle that ‘the older partitioning while the younger choosing' was accepted, and equally sharing among the successors was important, and attention should be paid on the protection of the interests of spouse who still living. In recent times, with the ideas of fairness,democracy, equality, freedom widely accepted, counties improved the legal systems of partition of the inheritance constantly on the basis of absorbing the reasonable factors of the Rome Law and the Germanic Law on the heritage division system. In the legislative idea, not only focus on the equal distribution among the coparceners, but also pay more attention to the equally protect the interests of creditors of both the decedent and heirs, or any other third party involved in the succession, as well as pay more attention to respect the decedent will and the interests of the weak. From the succession system evolution of ancient China, there is no legal system of partition of the inheritance. Because living together and co-ownership was traditional Chinese family style, the guardian of the family managed the family property while the other family members have no such rights. So existing two patterns, one is the “big family” mode that after the guardian of the family died, the eldest son or brother possess the family property, another is the “separating family” mode that sons share the family property equally after they married and started to live apart. The heritage division system was established in the Draft Civil Law of Qing Dynasty in 1911, which also set up the individual property ownership, and made it clear that the coparceners have the co-ownership of the decedent' estate and have the right to request partitioning the estate. After that, the Draft Civil Law of Republic of China and the Civil law of the Republic of China both included more detailed and specific provisions of the partitioning system with much more prominent than a modern civil law advocated equality, freedom, fairness and justice. The most representative example is that in 1930, after the Succession Part of the Civil Law of the Republic of China was promulgated, the decedent's daughter began having the equal right of inheritance with his son as the first order of succession. This Succession Part of the Civil Law was abolished in the mainland of China when the People's Republic of China was established in 1949, but adoptedin Taiwan of China and amended several times. The system of partition of the inheritance in current Law of Succession was made in 1985. Due to the influence of the Soviet legislation model and the guiding ideology of “Fine legislation is appropriate coarse”, and the restriction of the social and economic development level at that time, the provisions is relatively rough and the protection of the interests of both decedent and heir's creditors involved in the division of the heritage is not comprehensive.The third chapter is the review of the foreign legislation of the partition of the inheritance. This chapter is divided into six sections referring to the subject, object, basis,time, method, effect of the partition of the inheritance in the foreign legislation. This chapter discusses the systems of partition of the inheritance in civil law countries including France,Germany, Switzerland, Japan, Italy, Russia. By careful researches, when partitioning a decedent's estate, the common points in these legislation are that the subject is the coparcener,the scope of the heritage is only the positive legacy. These countries except Russia have established the heritage separation rules to partition the decedent's estate with the property of heirs for protecting the interests of both the decedent's creditor and the successor's creditor,and heritage deduction rules to protect the fair distribution among coparceners. After the beginning of the succession, the main legal basis of a coparcener requesting to partition the estate can be the deceased's will, the agreement of coparceners, or the court's decree; the successors have the right to request to partition the estate except the limitation of the decedent's will, the agreement of coparceners or the legislation. The legal limitations of partition of the inheritance include that the successor is a unborn child, heir's identity or partial property of the heritage is disputed, or immediately partitioning leads to damaging effectiveness of the heritage. The coparcener can take compensation, discount and other segmentation methods if the heritage can't be physically divided without reducing its value.The surviving spouses and other special heirs have special rights at partitioning the housing or living supplies. There are special segmentation methods for the special heritages. After partitioning of the estate, each coparcener starts to bear the warranty liability of mutual rights and the legacy. There are also some different points in details in various systems of these national legislation of segmentation heritage at time constraints for claiming to partition estate;the subjects, object, exemption and method of heritage deduction; the specific measures to protect the surviving spouse; the specific segmentation method for the special heritage;whether retroactive effect of the partitioning occur at the beginning and so on. In theaforementioned countries, the heritage deduction provisions and the heritage warranty liability provisions help protecting equitable distribution among heirs; the heritage separation rules help protecting the interests of both the decedent's creditor and the successor's creditor;the specific methods of segmentation heritage for special heritage and special heir, are conducive to maintaining the effectiveness of heritage and family ethics play, so these provisions are worth our reference.The fourth chapter is the theoretical basis and the foundation of our social heritage segmentation system. This chapter is divided into two, the first is theoretical basis for our heritage segmentation system; the second is social foundation for China's heritage division system. In this chapter, Firstly, reviewing the theoretical basis of our heritage distribution system from the legislative value orientation. Improving our heritage segmentation system must reflect upon perfect freedom, equality, equity, efficiency and order value. When these values conflict, should be considered a different way and highlight the heritage division of the different values of the pick. Being heir by will instruct partitioning of the estate to the value of freedom as the first, followed by the fair value. When splitting by the co-heirs' agreement heritage, with equal value for the first, followed by the value of free, fair value again. When the court referee heritage division to equal the value of the first, followed by the fair value, the value of freedom again, the efficiency of the final value. Secondly, from the four aspects of economy, population and family structure, the status of judicial and inherited habits of our people to examine the social basis of inheritance division system. The great changes in China's social situation put forward new demands on improving our heritage segmentation system, and that embodied in: Firstly, in recent years, the majority of urban and rural property of citizens not only in the amount of the increase, and more and more types,especially for all types of property rights related enterprises is more the Law of Succession enactment of which were not met, and therefore need to focus on treatment at the time of partitioning of the estate; Secondly, as China entered the aging society, and growing life expectancy gap between men and women, the need for women surviving spouse's life-support issues need to be concerned; the third is for the total amount of inheritance dividing disputes the rising and increasingly complicated status of the judiciary, need to improve legislation to better guide judicial practice; the fourth, is for our people inherited habit, that people believe should make the heir property got during his lifetime due to marriage, business, and other gift from the decedent add to the estate, together with calculation of the total heritage; whenstatutory succession, inheritance generally split evenly principle, but it should be care for children, the elderly, the disabled and surviving spouses; when testate succession, the heirs will generally only be specified following parts, and each designated heritage home, this should be reflected.The fifth chapter is inadequate and suggestions for the partitioning of the estate in our law of succession. This chapter is divided into three sections, and the first section is deficiency in our legal systems of partition of the inheritance; the second section is inspection and evaluation of the views of our scholars to improve segmentation system; the second section is recommendations to improve legislation of the heritage division system. In this chapter, basing on the review of foreign legislations and social reality of the situation, it's find the current Law of Succession deficiencies in the legislative style and content of the legislation. It specific performs at: Firstly, the partitioning of the estate is not designed as a special section or chapter predetermined, unscientific legislation style; Secondly, China's current legislative provisions for partitioning the estate, referring to subject, object, basis, time,method and effect, is too simple, general unable to meet the needs of the community to achieve. For the above-mentioned deficiencies of the current legislation, the author of Huixing Liang, Liming Wang, Guodong Xu, Yumin Zhang, Wei Chen, Lixin Yang and other scholars have suggested that six draft relevant content inspection and evaluation system.Drawing on their useful experience, it's put forward the perfection legislative proposal for partition of the inheritance. The suggestions include that "Partitioning of the estate" should be a special section in chapter "Disposition of the Estate" in the Succession Part of the Civil Code of China, and improving the main content of our heritage segmentation system,including: a clear subject of segmentation of the heritage, perfect heritage separation system,an additional of heritage deduction provisions, a sound basis for partitioning the estate, a clear time limit for partitioning the estate, improve the method of partitioning the estate and an additional of the effect of partitioning the estate. |
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