The Research On The Law Of The Waiver Inheritance

waiver inheritance has very important significance for the realization of theinheritance right and the transference of the Heritage rights in the inheritance legalsystem. there are detailed, complete regulations of waiver inheritance in theinheritance legal of Western countries. But It has been insufficient of the cognizanceof the value of the waiver inheritance in our country’s current inheritance law, whichonly has nine scattered provisions of the waiver inheritance. And those prescriptionsare less and indeterminate, some important related aspects has not yet been provided,which leaves much legislation blank. Because of the lack of operability, disputescaused by waiver inheritance is not rare in the judicature practice. As the inheritanceLaw is to amend, Based on the views of the scholars about the waiver inheritanceLegal system modification debation, this paper analyzes the defects of the system,puts forward Improving Suggestions, in the hope of offering reference for themodification of our Inheritance Law.This paper, which is more than30000words, can be divided into the introductionand main body. The introduction gives a brief introduction to the social background ofthe modification of our Inheritance Law and expounds the necessity and significanceof the research in the field. The main body part is divided into five chapters to discuss.The first part about the overview on the law of the waiver inheritance. First, thelegal concept of the waiver inheritance will be defined, then the character of thewaiver inheritance will be analyzed, in addintion, the historical evolution of the law ofthe waiver inheritance will be cast back, and the object of the waiver inheritancewhich has been controversial will be discussed in detail. After these three existingperspective are discussed and comparative analysed, The author thought that "the saidof inheritance right by division" is the most reasonable explanation.In the last of thispart, the author introduces the legislative purpose of the waiver inheritance which is tobalance the interest of heir, heritage creditors and heir to the creditor.The second part is the factors of the waiver inheritance. combined with foreignlegislation and the current regulation of the inheritance law in our country, on base of analyzing its main body, time, deadline and fashion, the part will mainly illustrate thatin certain circumstances, the legal representative of the no civil capacity and limitedcapacity for civil conduct can act on behalf of heir to abandon inheritance. At last, itwill be further analysed that waiver inheritance mustn’t attach condition or partiallygive up.The third part is the force of the waiver inheritance. in this part, the retroactiveeffect of the waiver inheritance which traces back to the start of the inheritance will befirstly introduced, secondly refer to the Foreign legislation, the force to the heir whoabandons inheritance will be mainly expounded, namely, the heir who abandonsinheritance has the continue management obligation to heritage, And through thecomparison and analysis, The authour believe that the management obligation is theNegotiorum gestio obligations. Then the force of the waiver inheritance which can’tbe withdrawed but can be reversed because of cheat, coercion and the significantmisunderstanding will be detailed analysed. At the last of this part, after the heirabandoning inheritance, the ownership of the successional portion and therepresentation problem of the heir’s direct descendente who abandones inheritancewill be expounded.The forth part is the protection of interested party in waiver inheritance. On thebasis of elaborating the protection of legitimate rights and interests of creditors andmate in waiver inheritance, the author comes to two conclusions: firstly after the heirabandoning inheritance, the creditors mustn’t revoke waiver inheritance. If the heirsmaliciously abandon inheritance and creditors’ interests are damaged, the creditorscan apply for such an invalid act to the court, unless the heirs tender the relevantguarantee; secondly the intention of the heirs abandoning inheritance don’t have to askfor the heirs’ consent.The fifth part is the improvement on the system of waiver inheritance. Afterevaluating and analyzing the regulation of Chinese system of waiver inheritance, theauthor makes suggestions about Chinese system of waiver inheritance in terms oflegislation system arrangement and the specific standard choice.