On The Improvement Of The Requesting Right Of Recovering Inheritance

The system of the requesting right of recovering inheritance is a very important part of a nation's inheritance system, It plays an important role on the regulation of the legal relation of inheritance and for guaranteeing the successor's right. The chinese law of inheritance has some brief regulations on it and they can't be used to solve the problems emerging from judicial practice, So it needs improving accordingly.this article makes an approach to the system of the requesting right of recovering inheritance by the analysis of examples. In regard to the practice of legislation and jurisdiction,the article also gives some suggestions serving as a catalyst.Besides the forword and conclusion, this article is divided into three parts.The first part,case introduction, introduces the details of the case that Liuziyue, Liuzijing, Liuziyong sued Liuzijun.The second part, the difference and controversy of the above case. The emphasis of this part is the difference and controversy that the court dealing with the above case.The third part, the examing and interpretation of the requesting right of recovering inheritance. This part consists of three important contents.First, introduces the theory background of the requesting right of recovering inheritance: the requesting right of recovering inheritance originates from "petitio hereditatis" of Roman law,and it is an intrinsic attribute of the right of inheritance. It consists of four important elements. There are three theories on the nature of the requseting right of recovering inheritance,and they are right of formation, right of claim and eclecticism, we agree with the"electicism"and give the resons. The resons are that affirming heirship premises the recovering inheritance, the eclecticism accords with the nature of the right of inheritance, the eclecticism accords with the background of our legal tradition". There are many functions in the requesting right of recovering inheritance,such as "relieving the burden of prosecutor" from microcosmic perspective and maintaining peacefully economic and political order from macroscopic perspective. The right of inheritance is an independent right, it can be sued to the tortfeasor or the court. the requesting right of recovering inheritance can be abandoned, and its statute of limitations should be treated according to its different nature of rights. Second, the regulations of effective chinese law on the requesting right of recovering inheritance. It lists all the provisions and the relevant judicial interpretations, analyses the shortages that it can't solve the confusion of statute of limitation and it can't distinguish the inheritance dispute from the dispute of partitioning estate.Third, the concrete system design of the requesting right of recovering inheritance and its shortage. It is a summary report of the proposed theory, and mainly gives the suggestions on the requesting right of recovering inheritance in chinese law through the way that gives legislative proposals. The legislative proposals consist of adding the provisions of definition, scope of validity,system of limitation etc,and the reasons why we give such proposals.