Comparison And Research On Inheritance Right Protection System

As a traditional law, the law of succesion, at any point of history, plays an important role in safeguarding the extension of people’s rights and obligations. In the old times, inheritance refered to the succession of property left behind by the deceased, which excluded the succession of the deceased’s identity. In modern times, although changes have taken place, inheritance remains an important access to the deceased’s property for a natural person. The right of inheritance, therefore, should be given its proper due for it serves as an fundamental right to regulate the way a civil subject obtain the legacy left by the deceased. Ubi jus ibi remedium. Where there is right, there is relief. And right without relief is not really the right. When the successor’s right of inheritance is infringed, approperate relief must be provided to get the violated rights back to their original state, or to compensate the hurt, hazard and loss resulted from the infringement. Among all the relief means, judicial relief is the most authoritative and mandatory.As for the relief of inheritance, the difference in legislation is apparent between the two legal systems. In the countries of common law system, Testamentary Trust is adopted. In the civil law countries, the Requesting Right of Recovering Inheritance is employed. Although the two systems were developed in two different legal traditions and legislation concepts, they generate the same effect in protecting the inheritance right. Comparison and study of the legal relief system for inheritance protection and the law making experience from other countries will lead to a better understanding and improvement of the legislation in China. This paper tries to explore the inheritance protection system that best suit China and put forward the suggestions on how to improve the existing system, after a comparative study of principles in the legal relief means for inheritance protection in the common law system and the civil law system.This paper is consisted of four parts. Analysis of the protection mode for inheritance right in the two law systems will be provided through a comparative study of their specification, structure and performance. The characteristics of the two modes will be summerized. After that, the author will put forward the legislative suggestions that she believes will suit the conditions in China.Part1will give a general introduction of the concepts, characteristics of the right of inheritance as well as the historical development of the legal relief modes for inheritance protection in the two law systems.The development of the theory of inheritance right has been accompanied by the changes in the corresponding relief systems. This will be first question the author will talk about in the paper. To do so, the author will provide a systemetic introduction of the related background knowlege as a theoretical foundation for the study in the following parts of the paper. Part2will focus on the comparative study of the legislation of inheritance protection system in the common law countries and regions which have adopted Testamentary Trust as the inheritance protection mode. This part will provide an analysis of the function of Legacy Trust through a comparative study of the legislative status in some major common law countries and regions.Part3will focus on the comparative study of the legislation of inheritance protection system in the civil law countries and regions which have adopted Requesting Right of Recovering Inheritance as the inheritance protection mode. This part will analyze the function of this system through a comparative study of the legislative status in some major civil law countries and regions.Part4will summerize the theoretical study of the legal relief means for inheritance protection in the two law systems to illustrate what to choose for future legislation in this respect in China. From the perspectives of legislation inheritance and the distribution of judicial resources, this part will conclude that it is advisable to have Requesting Right of Recovering Inheritance established as the legal relief system for inheritance protection in future China. Based on the depth of legal analysis, the author will illustrate the value and significance of Requesting Right of Recovering Inheritance as a substantive relief means for protecting the successor’s right to the legacy left by the deceased. At last, the author will present her legislative suggestions in this respect, with the hope of promoting future legislation of inheritance protection in China.