| Period of the Republic China is a special historical period that takes over from the past and sets a new course for the future. During this period, traditional legal values and modern western legal thought had a fierce collision. Then the China's traditional legal system progressively collapsed, and the new legal system began remodeling, China's legal system started the development process of the modernization, in the field of civil code especially in marriage and inheritance legislation,mainly for the conflict of legal migration and the inherent traditional, the choices between the state law and customary law Inheritance law is status law which has closely contact with the China's inherently traditional concept in family law, so the analysis and research on inheritance law are very important for learning the modernization of Civil Code in China and revealing the feature of the revolution of China's legal system.This paper is used to fully describe the whole process of modernization of inheritance legislation.So this paper is divided into five sections, the content of the first section is a brief description of the China's traditional inheritance system overview, specifically including the China's traditional identity inheritance system and property inheritance system. The second section introduces the legislative background of inheritance legislation and the general situation of inherited legislation of the Republic of China. The third section explains the development of the inheritance legislation of the Republic in detail chronologically including the late Qing Dynasty's succession code 'Draft Civil Law of the Qing Dynasty'(1911),the Northern government the draft Law of Succession(1925), the government's three drafts which "Draft of Republic of China's civil law·the inheritance'is included(1928) and 'Republic of China Civil Code·Inheritance'. In the process of Inheritance legislation drafting by previous habits of the findings, interpretation of the relevant judicial precedents and DaLi Yuan cases, the writer analyzes the legislators' attitude when they deal led with customary law and state law through previous survey results, the relevant judicial precedents and the DaLi Yuan Case Explained case.The fourth section of the content and features from the perspective of the Civil Code of the Republic of China conducted a detailed analysis shows, which focus on five aspects of inheritance system including the establishment of the principle of gender equality, forced heirship, legitimate inheritance, intestate succession and entail institution,reveals the legislators in the law Transplantation and the difficult choices between domestic law and relevant judicial complaint by the Civil Code and jurisprudence, to describe the succession of legislative development in the modernization of the growth trajectory. The fourth section specified the Civil Code of the Republic of China from the content and features.The section puts focus on the establishment of the principle of gender equality, the legal system of inheritance, Intestate succession system and the confined inheritance, reveals the legislators hard choice between the law Transplantation and the domestic law, and describe he growth trajectory of inheritance legislation modernization by relevant judicial complaint of the Civil Code and jurisprudence. The fifth part is the conclusion and the theory sublimation of the Republic of China inheritance legislation's modernization, including the causes and necessity of legal migration, the relations between state law and civil law, inheritance laws' legislative practice and the legislative significance of China's current law of succession.Through the studies of the development of China's inheritance legislation in the past thousands of years,combined the survey of folk custom and judicial he study of legal jurisprudence, the paper analyzes the development of, analysis the evolution inheritance legislation of the Republic of China, reveals the characteristics of inheritance legislation's modernization:serve for the law modernization via finding the meeting point legal migration and localization, as state law and civil law. At the same time drawing lessons from history, the paper provides legislation and practice reference from the perspective of legal history for the current succession system. |
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