Comparative Research On Legitime And Deduction

This thesis is aiming at looking for a solution to the shortage of Necessary Share of Heritage in the current heritage law in China. Applying the theory of philosophy, jurisprudence and comparison, it analyses two options, respectively, deduction and legitime, considering the existing status, tries to select an optimal solution and propose design on establishing this system.This thesis is consist of three parts.The first part describs instability and superfaciality of necessary share of heritage which make it more inadaptable to the real life, introduces and compares the two options of deduction and legitaime which are explored from experince from other countries.The seconed part presents a compartive study on deduction and legitime, clarifies its comparability and explores its advantage and disavantage. A conclusion is drewn that legitime and more rational than deduction.From the point of legislation, justice and freedem, which have compatibility and reciprocity to each other, are two values pursured by law. Deduction and legitime both regonize the common sense. They are created for the purpose of freedem and balancing the benefit of different parties.From the point of application scope, object of a system is not equal to its application scope; the reasons for the birth of a system donot restrict its application scope either. In the system of deduction, the legal heir, which is always mentioned in the concept of derivative area; in the system of legitime, restriction to heritage freedom is the direct cause to the birth of legitime, but fails to restrict legitime within the heritage derivative area, therefore, both systems have that same application scope, they are both applied to legal heri area and derivative area.Deduction and legitime have different subject of abligation. In deduction, subject of abligation points at legal heir, but beyond legal heir in legitime. Objectives are different in both system, respectively, special gift in deduction and heritage proportion value in legitime. Deduction is different from the deduction rights in legitime system, which presents as there are different objects. Deduction object is only for special gift before death, while deduction right in legitime points at legal heir and other legatee, and deduction in legitime does not refer to special gift before death, because this porperty is the calculated basic porperty of legitime.Another difference between deduction and deduction right is their preposotive procedure and restrictions. Prepositive procedure in deduction means, during coheritance, the heir obtain special gift withou claim of exemption from the ancestor before death; while legitime prior to guarantee all legal portion as pre-condition, this is to ensure the minimal benefit of the obligee. In the legitime, deduction right is equiped with restriction on retractivity forward and validity afterward, which is more resonbly balancing the benefit of ancestor after bestow and heirship of legal heir, therefore, legitime is a better option to develop the heritage law in ChinaBased on the content of legitime in other countries and the existing status in China, a special proposal on establishing legitime for China is presented the third part. The relevant content of legitime includes obligee, proportion, clarification of deduction rights.