On Legal Protection Of The Interests Of Estate Creditors

The issue of protection of creditors'interests of the decedent constitutes an important issue in legal system of estate succession, which directly affects the stability of economic order of the whole society and safety of the trade. However, the current succession system in China mainly protects the interests of the successor, emphasizes regulation of internal relationship of the successor. As far as the relationship between the successor and estate creditors is concerned, the current succession system only provides that the successor when succeeding the estate shall pay off the taxes and obligations to be paid by the decedent within the limitation of actual value of the estate, and where the successor abandon the succession, the successor may be free from repayment liability. Notwithstanding the provision may play the role to protect the interests of estate creditors, the protection is only passive and insufficient and not thorough enough. In judicial practice, after the estate of the decedent is transferred under the own of the successor, the successor, by taking advantage of the convenience of direct control of the estate, commit some act to infringe the interests of estate creditors, but estate creditors is lack of efficient remedy, resulting in the failure to adopt legal measures to protect the lawful rights and interests of their own. Due to the restriction of specific social conditions at the time of legislation, the current Succession Law in China apparently ignored the protection for the interests of estate creditors in the design of specific formulation, existing omission and deficiencies. Therefore, constant enrichment and improvement of relevant legislation on interest protection for estate creditors attaches important theoretical and real significance to protection of the lawful rights and interests of estate creditors. This paper, aiming at the problem in protection of the interests of estate creditors in the system of estate succession in China and comparing with relevant legislations in foreign countries, analyzes the deficiencies of protection of the interests of estate creditors in China, and in the reference to research achievements of the ancestors and in combination of the Chinese actualities, puts forward legislative suggestions for the Succession Law in China concerning protection system of the interests of estate creditors, hoping to offer conducive reference for revision of the current Succession Law in the future.Apart from Introduction of this paper, the body is composed of four parts, more than 27,000 in total. The first part brings out the problem. By two typical cases, this part indicates the barristers in protection of the interests of estate creditors encountered in judicial practice, and enumerates various manifestations of infringement of the interests of estate creditors committed by the successor, and illustrates that improvement of protection mechanism of estate creditors in China is directly connected with personal interests of estate creditors and attaches realistic meaning to revision of the Civil Code and stability of market order.The second part reviews and evaluates foreign legislations. The countries in the Anglo-American legal system universally adopt indirect succession system, which is capable of fairly protecting the interests of the successor and estate creditors and effectively preventing infringement of the interests of estate creditors. However, this succession means greatly differs from succession habits in China and requires the cooperation of public force, not conforming to the actualities in China. The countries in continental legal system practice direct succession system, which is the same as Chinese practice. Therefore, the author introduces more the major systems concerning protection of the interests of estate creditors in these countries. As far as the system of conditional restricted succession is concerned, Germany, Italy and Japan respectively provide that where the successor choose restricted succession, they must formulate loyal and adequate estate detailed list in accordance with law within statutory time limit, so as to ensure independence and completeness of the estate, free from the act of concealment or infringement, otherwise they shall be deprived of the qualifications and rights of restricted succession, in order to prevent the successor from abusing the right of restricted succession and infringe estate creditors. As far as the legislation on the system of estate management is concerned, the continental legal system greatly differs from the Anglo-American legal system and the countries in internal continental legal system also differentiate from each other. Therefore, the author selects some representative countries to make emphasized introduction, such as the Germanic estate management system, Sweden system of announcement of estate list and official clearing system, Japanese and French property separation system, and estate management system in the Anglo-American legal system. In the meantime, these counties make definite provisions on the determination and functions and duties of estate managers. This paper introduces the system of succession acceptance and abandonment, the means to pay off estate obligations, and joint and several liabilities of joint successors for estate obligations. The advanced legislative techniques and successful experience in foreign countries will offer inspiration and reference for revision of the current Succession Law.The third part indicates the deficiencies in protection of the interests of estate creditors in the Succession Law in China. The current Succession Law in China and the Opinions of the Supreme Court concerning Several Issues on Implementation of the Succession Law of the People's Republic of China (hereinafter referred to as the Opinions on the Succession Law) were formulated and promulgated in 1985, the legislation of which on protection of the interests of estate creditors has the disadvantages of excessive simple articles and inconvenient practical operation and has difficulty in adjusting to the requirements of actual situation. The current Succession Law in China has the following deficiencies in protection of the interests of estate creditors, including the first one is lack of conditional restricted succession principle, the second one is without special estate management system, the third one is without definite provision on the time limit for accepting and abandoning succession, the fourth one is without provision on the paying off of estate obligations, the firth one is without specific provision on the means of paying off obligations, and the sixth one is without provision on joint and several liabilities of joint successors for assuming estate obligations. By analyzing the deficiencies, this part further illustrates the necessity to better and improve relevant systems.The fourth part puts forward system conception on improvement of protection of estate creditors in China. In connection with the problems in the current Succession Law in China, on the basis of concluding research achievements of the ancestors and in combination of the actualities in China, this part makes specific illustrations on establishment of conditional restricted succession system, establishment of sound estate management system, time limit for clearing accepting and abandoning succession, establishment of paying-off procedures of estate obligations, and specification of joint and several liabilities of joint successors for estate obligations and puts forward legislative suggestions for improvement of protection system for estate creditors in China.