The Conflict Of Reply Inheritance Claims And The Right To Request The Return Of All Things

Inheritance for reply is an indispensable part of inheritance system, stated in succession in continental law system countries generally respond to exercise of the right of claim and effects, to protect the interests of heirs, maintaining economic order stability has important significance. Our country "inheritance law" does not expressly inheritance reply right, only in article 8 and its judicial interpretation stipulates the system of limitation of inheritance disputes, law vacancy inconvenience for heir exercise reply inheritance system, cannot effectively solve the various problems occurred in the judicial practice.In this article, through the analysis of two cases in the judicial practice, found the inheritance for reply limitation provisions and belongings back claims, the conflict between the two relations should be how to coordinate and applicable, the theoretical circle has not form a consensus, the court in the judicial practice of the referee is not unified. Based on the contradictions, this article through to the inheritance reply right nature and definition of limitation system, analyzing the relation between its and possessions return the right of claim, and in Japan and Chinese Taiwan advanced judicial experience, the contradictions of two kinds of system to explore, trying to find out solution for the conflict. This paper will be divided into five parts:The first chapter:the problems mentioned. "Inheritance law" regulation, inheritance after the start, as long as the heir to specifically disclaims inheritance, not as heir to accept inheritance, heritage is heir to the outcome of all, of course, the real right change at this time, if there are multiple heir at the same time, so in front of the heritage with all heir to inherit property belongs to the joint ownership. Stipulated in article 8 heir knew or should have known that its rights violations must be within two years from the date of the prosecution, and since the date of succession began more than 20 years, not Sue. Abused to the resulting problem is the successor in succession after years of heritage reply, in accordance with the provisions of the "inheritance law" due to the limitation has been can not get relief, but according to the regulation of possessions return the right of claim is not subject to time constraints, it can always request the infringer to return the property.The second chapter:the judicial practice. For inheritance reply right conflict with possessions return the right of claim, the court practice is not consistent, part of the applicable inheritance reply right, another part of the applicable possessions return the right of claim, connection with different sentence is not only unable to convince the parties, and not fair to protect the interests of the lawful holder, at the same time also can damage the legal dignity, so to solve the conflict between them is particularly important and urgent.The third chapter:position in academic circles. Clear inherit to the reply of claim is the nature of the analysis for reply with possessions back right relationship, the premise of the theoretical circle of inheritance for reply the understanding of the nature, there are mainly form the said rights, claims and compromise, this paper support independent claim said. Chinese scholars for reply for inheritance relation with possessions return the right of claim is not said, statutory raw phenomenon and a usual three main position.The fourth chapter:Chinese Taiwan and Japan. Chinese Taiwan and Japan’s legislative provisions similar to our country, by a single law reply right to claim for inheritance rules, therefore the doctrine of the two places and the judicial practice of research helps to solve the difficulties encountered in the judicial practice of our country.The fifth chapter:the position of this paper. Inheritance for reply with possessions return the right of claim for contradiction is mainly manifested on the difference of the limitation system, the former limited by 2 years of the statute of limitations, the latter is not restricted by the statute of limitations, so the analysis of the legal system stipulated a time limitation of inheritance back right deficiency and the set time limits for understanding the meaning of the importance of inheritance for reply. This paper argues that rules possessions are returned to the general principles of the civil law is the right of claim, the general law the law of inheritance to reply right of claim is a special law, inheritance law so possessions return the right of claim and inherit reply is law concurrence relationship between right of claim, at the same time can also from other theories of concurrence of defects and the law said that two aspects of the reasonable parts of the argument. Reply to inherit the right of claim and belongings back right conflict resolution should be divided into two kinds of circumstances, heirs and successors, a kind of dispute reply should be applied to inherit the right of claim, this kind of situation is very rare in judicial practice, the more conflict exists between heirs together, because between heir Shared heritage all together, so apply belongings back for more reasonable.Finally, the article also mentioned in the epilogue for another reply to solve inherited and belongings back way of right conflict, namely establish usucapion, but according to the existing theory and academic ideas, obtains the actual effect of reply will be much longer than inheritance claim during the period of the statute of limitations, how to coordinate the conflict between them to continue to explore in the future.