On Defects And Improvement Of Succession By Subrogation System In China

As an important component of legal succession system in Inheritance Law inChina, succession by subrogation system plays an important role in guaranteeingequitable distribution of heritage for family branches and achieving the inheritance ofsocial wealth. Currently, the amendment to the Inheritance Law in China can beexpected soon since it has been listed in the legislative agenda of National People’sCongress. This paper explores the succession by subrogation system from theperspectives of theoretical nature, system function and legal constitution and analyzesthe problems existed in current succession by subrogation system in China and itscauses as well as puts forward the suggestions in terms of improvement of legislation.Some legal provisions concerning succession by subrogation system are prepared soas to provide some ideas and references to legislative body in terms of amendingrelevant legislation.Based on the suggestions on amendment to succession by subrogation systemfrom representative law experts and scholars in China, a series of propositionsconcerning the amendment and improvement of succession by subrogation system areput forward through methods such as theoretical analysis, historical analysis,comparative study, hypothetical deduction and the combination of argument andrefutation from the actual conditions of China with adequate consideration on socialcustoms and some experience borrowed from countries with advanced legislationconcerning succession by subrogation.First of all, the development of succession by subrogation system is introducedbriefly in this paper and the meaning of succession by subrogation system in a generalsense is proposed. Meanwhile, disputes over the nature of the right of representationof succession by subrogation and intrinsic right and the central issues are discussed.According to provisions on succession by subrogation in Inheritance Law in Chinaand Suggestions on Several Issues in Implementation of Inheritance Law by SupremePeople’s Court, the main characteristics of succession by subrogation system in Chinaare defined and its functions in five aspects such as protecting the legitimate right of inheritance are analyzed and concluded. Secondly, with the legal constitution ofsuccession by subrogation as the point of penetration, the major problems insuccession by subrogation system in China are proposed in this paper based on theactual conditions of China, the function and significance of establishing successionby subrogation system as well as the comparison with this system abroad. The majorproblems mainly include four problems and they are: right of representation adoptedin the nature of succession by subrogation and its defects; single types of occurrencereasons; narrow scope of application; other systems related to succession bysubrogation system are not very reasonable. Furthermore, a series of problems existedin the system are analyzed profoundly and it is believed that it is not due to simplelegislative faults but profound reasons from the current perspective in a rational way.Through in-depth analysis, four reasons are extracted including the influence fromspecific historical background of China, the influence from civil law in Soviet Russia,influence from the development level of productivity and family structure as well asthe inadequate consideration on the objective existence of social custom. At last, thelegislative ideas concerning improving succession by subrogation system in China areproposed. It is suggested that the intrinsic right shall be adopted in the nature ofsuccession by subrogation and the occurrence reasons and the scope of application forsuccession by subrogation shall be enlarged on the premise that inheritance byoperation of law shall be insisted as the only application of succession by subrogation.It is also suggested that the provisions on current force of law of succession bysubrogation shall be adhered to, the relief approaches in case that the right ofsuccession of subrogation person is infringed shall be defined and other provisionsrelated to succession by subrogation in Inheritance Law shall be improved further.Based on the abovementioned legislative proposals, the legal provisions concerningsuccession by subrogation system in China are prepared and explanations are made interms of relevant provisions.