The Conflict And Fusion Between The Law Of Succession And The Division Agreement Of Family

From Qin dynasty, the division agreement of family which emphasizes the “sons equalization system” has lasted for two thousand years, it is usually for the multi-son family to handle the property inheritance, such as land and house. In the system, it has a relatively stable content and procedures, the effectiveness has also be affirmed by feudal dynasties. However, for the political purpose, the late Qing dynasty transplanted western laws, the inheritance system as the legal system of property inheritance officially replaced the division agreement of family. But till now, as a folk custom, the division agreement of the family is still widespread in china, especially in rural areas, and plays an important role. Due to lack of law, academia and the judiciary both have different opinions about the nature and the effectiveness of the division agreement of family. In cases involving the division agreement, the judge denies the validity because of the content which maybe is not fair, while ignoring the true meaning of parties who signed the agreement at that situation. Simply so, it not only cannot protect the expected interests of the both parties, but also cannot really solve the dispute, to be worse, it may cause the confliction between the civil law and the state law. The family attribute and ethical attribute of the inheritance behavior determine the necessity of the application of division agreement in the inheritance law, and it is also suitable. In view of this, the thesis reveals the nature of the division agreement, and point out the essence of the contract, and proposes to recognize it in the amending of the succession law, also to creat and perfect Legal portion system and parallel system, as far as possible to respect the autonomy of all parties, and keep autonomy as first principle in the civil field. Affirm the validity the division agreement and use legal force to intervene the unreasonable facts, thereby taking into account the contractual conflict and fusion between freedom and legal regulation., and also provide practical according for judicial field and help settling disputes.