The Research On The Waiving System Of The Right Of Succession

The waiving system of the right of succession is the system of inheritance of property,which is of great significance to the protection of the interest of the related interest body inthe process of both the estate transfer and inheritance succession. Due to the restriction of theeconomic development, historical background as well as legislative experience in the verybeginning when the inheritance law was formulated, the waiving system of the right ofsuccession adopted now was quite simple. Meanwhile, along with the development of socialeconomy, the legal relation of succession as well as the change of people’s mind, thedeficiency of this system gradually appears. Thus, it is a necessity to further improve andbetter both the legal institutional arrangement and detail content of this system.This article aims to probe into some theoretical issues related to the waiving of the rightof succession, illustrate its development track and reveal its purpose of legislation. It willmake an investigation and comparative analysis of the related legislations abroad, andconclude their beneficial experience. The advice on bettering the waiving system of the rightof succession is proposed on the basis of people’s succession habit, the social situation as wellas national conditions, and when all of these are integrated with the theoretical research doneby scholars.In addition to introduction and conclusion, the body of this paper can be divided intofour parts.The first part is a general overview of the waiving system of the right of succession. Atfirst, it defines the meaning of the right of succession and analyzes its properties, and it pointsout that the right of succession here mentioned in this paper refers to the right of succession inthe narrow sense. Then, it makes a comparison between the waiving of the right of successionand the abandon of legacy, between the waiving of the right of succession and the loss of theright of succession, which are quite easy to be mixed by people. At last, it makes a generaloverview of the development of the waiving system of the right of inheritance. Based on itsorigin and historical development of this system, it points out that this system takes voluntaryinheritance, fairness and honesty as its fundamental philosophy, and tries to find a balance toprotect all the interest bodies involved in the succession.The second part is an introduction and analysis of the legislation of the waiving system of succession right abroad. It mainly investigates the legislation in four foreign countries,including Germany, France, Japan and Switzerland, and compares the institutionalarrangement and detail content of the system. On the basis of this, it finds out that in thesecountries, the legislations pay a lot of attention to people’s inheritance habits, and they try tofind a balance to protect the interest of all the interest bodies.The third part illustrates the current situation of the waiving system of succession right inChina. At first, it introduces the legislative overview and basic content of the current waivingsystem of succession right in China, and it points out that there is still some bewildermentwhen the administration of justice solves the disputes caused by waiving of succession right,and the related interest body lack of remedy in the process of the inheritance succession;meanwhile, it points out that the current waiving system of succession right in China hassome shortcomings in deadline, pattern, restriction and efficiency, etc.The fourth part is the perfecting of the waiving system of succession right. It combinespeople’s inheritance habits in contemporary China with the physical situation in China toanalyze the suggestions and views on waiving system of succession right proposed by thescholars and judicial workers from home and abroad. Besides, on the basis of the beneficialexperience learned from other countries, it puts forward some good suggestions on legislativeinstitutional arrangement and content. The suggestions are as follows: firstly, put the contentof the waiving system into the general rules of inheritance to show its independence; secondly,the proxy of the waiving of succession right should be bettered, and the waiving of successionright should be put forward by in the written form, and no reservations should be attached. Itdefines the efficiency of waiving the succession right, including ensuring efficiency, themanagement responsibility of the waiver and the affiliation efficiency of the waivedinheritance proportion; thirdly, it suggests that under some circumstances, the creditor has theright of revocation, and it clearly proposes that the waiving of succession right doesn’t needthe agreement of the spouse, and it protects the spouse’s benefit by modifying the content ofthe17thrule in “Law of Marriage”.