Discussion On Some Problems Of Heritage

Heritage Deduction is a property system, which is refers to in commoninheritance, in order to achieve the goal of fair division heritage, the heir returns thegift item that is got from the deceased as a gift in a direct or indirect way before his orher death to the scope of the heritage and distribute it with all heirs and it should bededucted from successional portion.The spirit of system can be as early as embodiedin Ancient Babylon’s Code Of Hummurabi,but it is in the Roman Law that is formallyestablished property value system and the Roman Law is the source that is directlyreflected deduction thought.Now many countries in the world have established thesystem of Heritage Deduction, since our country had completed Qing Civil DaftLaw,there is the legislation of Heritage Deduction system.After the founding of newChina, in1985,the promulgation and implement of the inheritance law of the People’sRepublic of China have not stipulated the heritage deduction system.Theministry"inheritance law" since the implementation of to now, nearly28years,in thestormy billows of the legal system construction of the republic,with its high level oflegislative technology and strong ability to adapt,always maintain the originalstyle,which is very rare in China’s modern legal history.Have to admit that the lawinnovated. However, the existence of any every coin has two sides, in the process oflong-term applicable,"inheritance law" at the same time, highlights its historicdefects.Under the current situation in our country, the simple and crude "inheritancelaw" can no longer meet the needs of social and economic life, modify the inheritancelaw calls for more and more high, many of the new system will be introduced in it,asa set of mature system, deduction system’s function has already been proved, and thefolk custom in China had to cultivate the soil for the establishment of deductionsystem.In this paper, starting from the historical evolution of the deduction system,this paper introduces the deduction system of the concept, theoretical basis,development trend and foreign legislative cases, the thinking of deduction system andthe portion system, and probes into several problems in the Heritage Deduction,and finally, puts forward the legislative Suggestions that is in order to establish deductionsystem in our country,so that deduction system can be wrote in "inheritance law" assoon as possible.In this paper, in addition to the introduction, the main content is divided into thefollowing several parts:The first part: summary of deduction system in heritage segmentation. This partmainly introduces the concept of Heritage Deduction, historical evolution, theoreticalbasis(including legal basis, economic basis and social base), the author for thinking ofdeduction system and the portion system was introduced in detail, and emphaticallyintroduces the difference between necessary portion of an inheritance and legalportion.The second part: the foreign legislative cases analysis of Heritage Deduction.This section from the foreign legislative example of deduction system, firstunderstand to other countries legislation relating to deduction system, then focus onthe similarities and differences of foreign legislation of deduction system cases.The third part: some issues discussed in Heritage Deduction. This part is the keypart of this paper and discusses in detail the basic principles of deduction system,deduction system’s subject scope, the object scope, implement method, the HeritageDeduction and the interests of the third person in good faith protection, and discussesthe related issues of deduction system.The fourth part: the legislative Suggestions of China’s Heritage DeductionSystem. This part firstly introduces the development trend of deduction system andthe meaning of the establishment of deduction system in China, secondly on the basisof summarizing the foreign legislative cases put forward legislative Suggestions to theauthor, we are as follows:Inheritance before you begin, the deceased give legal heir of the marriage,separation, operating expenses, and beyond the obligation education part of the cost ofeducation, vocational training expenses, should according to the gift when the valueof offset by its share of the estate, but in accordance with the objective conditions tobe able to return the original items and agree to forms of return the statutory successors should now return.The following property should not be included in deduction property, loweconomic value of the gift; As the burden of family life expenditure; For children toget married and settle down the general spending or gifts; For children to receivecompulsory education expenditure, etc.At the time of the gift,if the deceased shows the gift need not to be included indeduction property in a express way,so that the gift item need not to be included indeduction property.If the property that the legal heir accepts from the deceased before his or herdeath is more than successional portion, accepting it is bad to other legal heirs’legalportion,the part that is more than successional portion need not to be returned.