On The Establishment Of Legacy Supervisor System In China

Based on the very case of heritage of Mr. Hou Yaowen's legacy as an introduction, the analysis of the negative factors that impacted his legacy heritage is presented in this paper. Then, the disadvantages and shortcomings of the existing legislative system on legacy heritage are illustrated. Based on this, a solution is proposed in full accordance with the tendency and development of the legislative systems in the world, which is interpreted as to establish the legacy supervisor system. And this is the very focus of this paper. In dealing with the establishment of the legacy supervisor system, the author would like to divide the paper into 4 parts.The first part is dealing with case analysis and problems. As a foreshadowing or background description, this part would provide a brief review of the suspending 2-year-long case on Mr. Hou Yaowen's legacy. According to the author, the disputes of this case lye in two aspects. One is the dispute among the internal relationships, focusing upon the coverage of the legacy. Another one is the disputes among the external relationships, focusing on the liquidation of the credits and liabilities of Mr. Hou Yaowen before his death. Actually, both of the above-mentioned disputes could be well enwrapped into one. And the very root is the lack of the main body to undertake the responsibility and leading roll to deal with the legacy heritage in accordance with the legislative system. And the nature of the disputes could be retrieved back to the structure of the existing legacy heritage legislative system in China. In accordance with the existing concerned legislative system in China, the legacy custodian system and the legacy executor system have both positive and negative significance. And the limit or disadvantage of the legacy custodian system and the legacy executor system has been completely reflected in the very case of Mr. Hou Yaowen's legacy heritage. The performance of the legacy custodian system is somewhat over negative or inactive. It only specifies the custody obligation for the legacy owner. And the legacy custodian has neither right nor obligation to active involve into the legacy heritage procedure to motivate the progress of the procedure. Meanwhile, the legacy executor system has to be based specifically on the testament of the heritee before his death. As indicated in the case of Mr. Hou Yaowen's legacy heritage, the legacy supervisor system should be introduced to compensate the disadvantages of the existing legacy custodian system and legacy executor system.The second part is dealing with"the preconditions to establish the legacy supervisor system". The very logic precondition to establish legacy supervisor system is to specify the legal status of the legacy supervisor. And the tendency of the establishment of the legacy supervisor system should be directly dependent on the scientific location or specification of the legal status of the legacy supervisor. And the corresponding rights and obligations of the legacy supervisor would naturally be derived from the corresponding legal status. Based on the analysis of the ideas and positions in the existing academic community upon the legal status specification, both advantages and disadvantages are reflected in the current two main streams of their ideas and positions. According to the mainstream concept of the right of agent, the legal status of the legacy supervisor is characterized as agent. Thus, the rights and obligations of the legacy supervisor then equals to those of the agent. In accordance with the various positions of interests, the concept of the agent could be divided further into 3 schools, namely the agent of the heritee, the agent of heritor and the agent of the legacy. Whatever the position or school is, the concept of the agent lacks in its incomplete structure. And this is the very reason for the put forth of the concept of the fiduciary relation. According to this concept, the structure of fiduciary relation is used to interpret and illustrate the relationships among such main bodies including the heritee, legacy supervisor and heritor. The concept of the fiduciary relation provides compensations somewhat to the one-sidedness of the concept of the agent. However, as a realization mechanism of the property rights, the concept of the fiduciary relation ignores the basic characteristics of the legacy heritage including the personal property and the non-profit property. And the over-emphasis upon the finical or property factors would not be appropriate to clarify the missions or responsibilities of the legacy supervisor. Thus, the concept of the fiduciary relation goes too far from one end to another end. In order for a reasonable specification and location of the legacy supervisor, the position should be identified and clarified within the layers of interests and structure of the legacy supervisor. Especially notably, the legacy supervisor would mediate as a center hinge among various main bodies on various interest concerns. To be vivid, the legacy supervisor could be well considered as the balance weight shuttled within the group of the main bodies with crossing and overlapping interest concerns. Thus, in dealing with the legal status of the legacy supervisor, it could be considered as"the agent of all the concerned bodies"rather than the agent representing the heritee, the heritor and the legacy itself, respectively. Or to be simplified, the legacy supervisor is a"public supervisor", who should be responsible not only for the heritee, the heritor and the legatee, but also for the creditor and the debtor of the heritee before his death, or even for the national interests. Thus, the legal status of the legacy supervisor could be reasonably specified as an agent representing all the concerned bodies or the public supervisor. This specification of the legacy supervisor could be covered or defined neither with the concept of the agent or the concept of the fiduciary relation. To be more specified, it is another independent concept interpreted as"self-integrated concept".The third part is in dealing with the details on the establishment of the legacy supervisor system. As a matter of fact, the detailed establishment of the legacy supervisor system is related widely with many of the aspects. For the purpose of the brief description and deeper presentation, the description of this paper would be focused upon the very kernel parts of the legacy supervisor system, namely the rights and the obligations. Based on the consideration of legal status of the legacy supervisor as the public supervisor, the rights and obligations could be deduced logically. In accordance with the normal order of the legacy heritage, the procedure could be divided into 3 steps, namely, the specification of the legacy coverage, the management of the legacy, and the assignment of the legacy. And the corresponding rights and obligations of the legacy supervisor could be derived in accordance with the above-mentioned steps. As for the specification of the legacy coverage, the legacy supervisor, as the public supervisor in dealing with the mission to achieve heritage and assignment of the legacy, must have the right to specify and register the legacy. Any of the legacy custodians should, at the request of the legacy supervisor, transfer the legacy to the supervisor. Meanwhile, the corresponding obligations of the legacy supervisor are to inform all the parties interested into the legacy heritage procedure. The standard to judge the commitment of the obligations lies in the diligence and wariness. As for the management of the legacy, the rights of the legacy supervisor are to take over all the assets by various ways of claims before the integrated and collective management of the assets. In the same time, the legacy supervisor should undertake to put the assets into good will operation and good management. Then, in dealing with the assignment of the legacy, the legacy supervisor should play a leading roll in the legacy heritage order for the purpose of the coordinated and integrated assignments of the legacy. Besides, the legacy supervisor also has the right to take necessary countermeasure to deal with any activities harmful to the assignment of the legacy. At the time, the corresponding obligations for the legacy supervisor are to provide a fair and transparent environment for the legacy heritage. Besides the above-mentioned prescriptions in dealing the rights and obligations, the legacy supervisor should also be entitled with additional rights related to his own personal interests, including but not limited within the freedom to decide whether to involve himself into the legacy heritage as a legacy supervisor, and the right to claim payment after his involvement. And the additional obligations in this case are to avoid self-dealing and to keep all of the business of personal privacy aware as the legacy supervisor.As a conclusion to this paper, the forth part is a response to the given case problems. And the corresponding solutions or answers would be put forward to the problems in dealing with the establishment of the legacy supervisor system aroused in the beginning part of this paper. Based on this, a comparison would be presented between the existing legacy custodian system and the proposed legacy supervisor system. And the structural disadvantages of the existing legislative system in China would be illustrated, as well as the proposed applicable innovative direction and innovative options. In this sense, we own duplicated thanks to Mr. Hou Yanowen, who has not only bring up people with happiness before his death, but also point out the innovative direction for the people even after his death.