| In order to strengthen the construction of a socialist country ruled by law,the 18 th National Congress of the Communist Party of China has put forward the guiding principle of governing the country according to law.The fifth meeting of the 13 th NPC standing Committee has deliberated on the motion of the meeting of chairmen of the NPC standing Committee on submitting and deliberating on the drafts of the various subtitles of the Civil Code from 27 to 31 August 2018,This indicates that the compilation of Chinese Civil Code has entered the fast lane.As an important part of civil code,the content of inheritance law is related to whether the civil code of our country can be compiled scientifically or not.Therefore,as an important part of inheritance law,the study of inheritance deprivation system has important theoretical and practical significance.At present,there is no systematic and perfect system of disinherited right in "inheritance law" of our country.Only in Article 7 of the Law and Article 9-14 of the opinions of the Supreme people's Court on the implementation of the inheritance law(referred to as the enforcement opinions)stipulates in principle the content of the system of disinherited rights.In the form of filling the legal loophole,the enforcement opinions has added that when the heirs are deprived of their inheritance rights because of violation of the provisions of the law,the inheritance rights they have been deprived of can be restored on the basis of what circumstances.With the development of social economy in our country,the types and quantity of natural person's wealth increase gradually.At present,our country has entered the aging society,and a certain number of people die every year.If the heir commits an act against the decedent or other heirs which is illegal or seriously immoral,and is not subject to civil sanction,it would violate the legal principle that "no one shall profit from his illegal act",destroy social morality and family ethics as well as a good order of inheritance,the will of the decedent will no longer exist.Therefore,in the face of the social reality and national conditions of our country,the necessity of establishing a perfect and systematic system of disinherited right has become increasingly prominent.This paper attempts to study and construct a more perfect and systematic system of disinherited right in our country,in order to provide the inheritance parties with available relief path,and at the same time,it will be beneficial to the compilation of succession of Chinese Civil Code.In addition to the introduction,this article is divided into seven chapters,about 180000 words.The first chapter is about the basic theory of the system of disinherited right.This chapter is divided into two sections,the first section is about the concept of disinherited right system.First of all,from the perspective of semantics and law,as well as to define the concept of the system of disinherited rights,to prove that the system of disinherited rights should mean.That is to say,the so-called system of disinherited rights refers to when the heirs commit immoral acts or major illegal acts against the decedent or other heirs,or damage the will,the law deprives their successors by compulsory means of their qualifications.Secondly,there are more or less similarities between the deprivation of inheritance rights and the concepts of abandonment of inheritance rights,loss of inheritance rights and discontinuance of inheritance rights.In order to make the understanding of the system of disinherited right more accurate,it is necessary to compare and distinguish it with the concept of similar and closely related.The second section discusses the main contents of the system of disinherited right.It states that the main content of the system of disinherited right should include the legal cause,the procedure,the effect and the restoration of the disinherited right.And the four aspects of the content were explained.The second chapter is the analysis of the value orientation of the system of disinherited right.This chapter analyzes the theoretical basis of the right of inheritance deprivation system,from the analysis extracted from the system itself can fully meet the requirements of the realization,but also fully in line with the legal requirements of the basic theory of deprivation of inheritance rights.This chapter is divided into three sections.The first section mainly analyzes the justice value of the system of disinherited right.Justice is the first value of the system of disinherited right.The system of disinherited right is to guarantee the realization of justice value in the law by punishing the heirs' illegal behavior and disobeying morality.Any illegal and disobedient behavior to the decedent,other heirs and wills will result in deviation from or even damage to the justice value of the law.Because the heirs' illegal behaviors deviate from the requirements of the justice value of the law,it is necessary for the society to make the justice value of the law return smoothly.Inheritance law restrains heirs by disinheriting them,terminates their continuing damage to justice,and corrects the distorted standards of justice in order to restore normal norms of social justice.At the same time,the injustice caused by the behavior of the perpetrator can be neutralized or offset.The second section mainly analyzes the order value of the system of disinherited right,and points out that the value of order is the basic value of the system of disinherited right.If an heir has committed an immoral or even illegal act(such as wilfully killing a successor in the same order or in the same order)in an attempt to seize the estate,The order of inheritance stipulated in advance by law will change because of the illegal behavior of the doer.The system of disinherited right is to correct the destroyed order by punishing the infringer who destroys the legal order.The third section mainly analyzes the freedom value orientation of the system of deprivation of inheritance.Freedom is the goal pursued by the system of deprivation of inheritance,property ownership is the basic right of natural person,in order to protect the property ownership of natural person.In order to protect the property owner's freedom and sanction all the illegal interference in the implementation of the freedom of testament of others,such actors should be deprived of the right of inheritance.At the same time,the law should respect the will of the decedent when he considers that the heirs who have been deprived of their inheritance rights because of their illegal or seriously immoral acts have indeed shown repentance and can still inherit their estates,and the law should respect the freedom of the will of the decedents.These two aspects reflect the value of freedom in the system of disinherited right.The third chapter is about the historical evolution of the system of disinherited right.This chapter is divided into two sections.The first section mainly introduces the evolution of the system of disinherited right in foreign countries.First of all,it introduces the relevant contents of Hammurabi Code,the earliest stipulation about the system of disinherited right in ancient Babylon.It is found that in the period of ancient Babylon,the judge was extremely careful about the behavior of the father who wanted to deprive the son of his heirship among the free people,not only to conduct a practical investigation,but also to condone the behavior of his first offence,and only the second offender was allowed to be deprived.Analyzing the evolution of the system of disinherited right in foreign countries,the codification of civil code is a phenomenon of Roman law to a great extent.Therefore,in the development and changes of the system of disinherited rights,this paper mainly examines how the system of disinherited rights of Roman law develops and changes,and finds that the legal causes of the disinherited rights of heirs have been gradually refined in Roman law.The classification is specified in plain text for ease of application.At last,it summarizes the characteristics of the system of disinheritance in foreign countries in the historical evolution,that is,from ancient Babylon to ancient Rome,the attitude to the disinheritance of heirs.In the law has experienced from the initial provisions although more general abstract but strict restrictions to the laissez-faire then be abused and then return to the detailed norms and appropriate regulation.In order to limit or even purport to eliminate the testator abuse of its negative impact on society and inheritance relations.The second section mainly introduces the historical evolution of the system of disinherited right in our country.Firstly,it introduces the origin of the system of disinherited right in our country,and points out that the regulations of disinherited right in ancient China were based on the status of heirs.And the identity,the status,the right generalizes,has not made the stipulation to the property partial inheritance rights independently,this is also our country ancient time punishment people do not divide,the heavy punishment light people's family inheritance way which take the first son inheritance system as the core concrete manifestation.Secondly,it analyzes the development of the system of disinherited right in modern China,and finds that after entering the modern times,the system of disinherited right in China can learn from and refer to the successful experience of civil legislation in other countries of continental law system.Developed into a legal norm of disinheritance only against property.Finally,it sums up the characteristics of the inheritance deprivation system in the historical evolution,that is,the legal norms of the inheritance deprivation system have changed its dispersion in the old legal provisions,as well as its content involved in the status of more identity and less property.The development of the right to inherit property as a separate denial of the oneness.At the end of this section,the author makes a summary in order to sum up the development of the system of disinherited right at home and abroad through many years.Now it has developed into an independent system of disinheritance of property and a more perfect inheritance law system,in which the causes of disinheritance are specified one by one and classified and regulated.The fourth chapter is the investigation and comparative analysis of the system of disinherited right in foreign countries.This chapter is divided into three sections,the first section is the continental law of France,Germany,Switzerland,Japan,Russia,Italy,six countries to investigate the system of disinheritance.This part mainly studies the main contents of the system of disinherited right in the six countries,including the legal cause of disinherited right,the procedure of disinherited right,the effect of disinherited right and the recovery after disinherited right.The second section is the Anglo-American legal system of the United Kingdom,the United States two countries to investigate the inheritance rights deprivation system,the content and style of the investigation is consistent with the continental law system countries.The third section is a comparative analysis of the inheritance rights deprivation system in foreign countries.This section mainly analyzes the main contents of the inheritance rights deprivation systems in the two major legal system countries.In consideration of our country's specific social reality and the existing legal system on the basis of the national conditions,put forward their own views.The fifth chapter is the investigation of the legislative status and deficiencies of the system of disinherited right in our country.This chapter is divided into three sections.The first section examines the legislative status and deficiencies of the legal matters in the system of disinherited right in our country,and points out that the content of the legal subject matter in the present system of disinherited right in our country is too principled and simplistic.In the judicial practice,the operation is not strong;the second section has inspected the present situation and the insufficiency of the legislation of the legal effect in the system of disinherited right in our country.It is pointed out that there are some omissions in the provisions on whether the effect of the deprivation of inheritance right in our country is applicable to the right to claim,the obligee and the legatee,and that,according to the law of our country,when the heirs are deprived of the right to inheritance,there are some omissions.It is also against the spirit of modern civil law of "personality independence and responsibility" that the descendant lineal relatives can not subrogate to inherit the inheritance.The third section examines the present situation and deficiency of the legislation of the rule of restoration after disinherited right in our country.On the issue of restoring after the disinherited right,there is only one circumstance in the "inheritance Law" of our country that the inheritance right after being deprived can be restored because of the forgiveness of the decedent.Moreover,the conditions for restoration are quite strict and difficult to control,and except in this case,none of the disinherited rights resulting from the occurrence of legal causes of deprivation of inheritance rights can be restored.This has a great impact on the right of the decedent to dispose of his property freely.The sixth chapter is the investigation and analysis of Chinese scholars' suggestion on the system of disinherited right.Since the establishment of the system of disinheritance in China,there has been a lot of controversy.In view of the defects of the legislation,scholars have put forward suggestions and suggestions in order to construct the system of disinherited right suitable for the national conditions of our country,in order to study the system of disinherited right in depth.It is necessary to sort out and analyze the important academic viewpoints about the system of disinherited right in our country at present.This chapter mainly selects the suggestion about the disinherited right system in the suggestion draft of inheritance law put forward by the scholars of our country to carry on the systematic investigation.These six proposals mainly include the scholar suggestion draft completed under the auspices of Professor Liang Huixing,the scholar suggestion draft presided over by Professor Xu Guodong,the scholar suggestion draft completed under the auspices of Professor Wang Liming,and the scholar proposal completed under the auspices of Professor Zhang Yumin.The suggestion draft,the scholar suggestion draft completed by Professor Chen Wei,and the scholar proposal draft completed under the auspices of Professor Yang Lixin.This chapter is divided into four sections,the first section is about the legal reasons of the disinherited right system,the second section is about the legal procedure of the disinherited right system,and the second part is about the legal procedure of the disinherited right system.The third section is the legal effect of the system of deprivation of inheritance rights of Chinese scholars proposed by the investigation and assessment;the fourth section is the inheritance of the system of deprivation of inheritance rights after the restoration of the rules of inspection and evaluation of Chinese scholars' suggestions of the system of deprivation of inheritance rights.Through the systematic comparison and analysis of the six proposals of scholars,this chapter sums up the common points and differences of the legislative recommendations on the system of deprivation of inheritance rights in the suggestions of scholars,which lays the foundation for the part of legislative recommendations in the later part.The seventh chapter is the suggestion of perfecting the system of disinherited right in our country.This chapter is divided into three sections,the first section of the content of China's inheritance rights deprivation of the legal reasons for improvement and analysis of the reasons,put forward in five aspects should be improved in China's inheritance rights deprivation of the legal reasons and elaborate the reasons in detail.The second section is the perfect suggestion and legislative reason of the legal effect of the disinherited right in our country.It is proposed that the system of disinherited right should also have legal effect on the other interested parties of the inheritance to ensure that when the heirs are deprived of the inheritance right.Related to other legal relations can be clearly regulated,in order to have laws to follow,there are rules to follow;the third section is China's inheritance rights after the restoration of the rule of perfect recommendations and reasons for analysis.It is proposed that the scope of application of the restoration rule after disinheritance should be expanded,the applicable preconditions of the restoration rule after disinheritance should be abolished,and the concrete manifestation of the restoration rule after disinheritance should be limited and the legislative reasons should be explained. |
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