The Construction Of Requesting Right Of Recovering Inheritance In Our Country

Civil law aims to identify and protect the rights. In order to protect the rights, civil law has established a series of the basis of claim right. Serve as an independent civil rights, the relief system of the right of inheritance is of great importance.The right of inheritance is an independent civil rights, their rights is essential relief system, but this was our legislation is nearly blank. Our country’s “Inheritance Law” includes 37 articles of law totally, and almost no relief system involved in the law. The system of requesting right of recovering inheritance is originated in Roman Law’s inheritance litigation which is to protect the right of inheritance and give a comprehensive relief when one’s inheritance right has been unlawful infringed. With the development of society, the increases of staff mobility, and the colorful forms of property, the circumstances of inheritance disputes have been more and more complex. According to the principle of certainly inheritance, Since at the death, the heirs inherit the heritage certainly, without any procedures or occupation of the heritage virtually. But in practice, there have many situation that the heritage was occupied by other people. So some systems like inheritance litigation which to protect the inheritor’ s rights completely still have it’s important value. Because of the deficiency of requesting right of recovering inheritance in our country, researching the value, quality, practical application and aging of this system has the great significance, especially in the period of revising the “Inheritance Law”.This paper is divided into four parts altogether. The first chapter is the system value of the requesting right of recovering inheritance. Using the research methods of value analysis and historical analysis, this chapter discussed the origin of requesting right of recovering inheritance and the necessity of this system’s construction in our country. The second chapter is theoretical controversy and legal analysis of the requesting right of recovering inheritance. The determination on the nature is the foundation of establishing any legal system. Currently, the theorists have three point of view on the property of requesting right, such as the right of formation, the right of claim and the compromise of formation and claim. Based on analysis of legislation in other country, and combined with our practical situation, this article tends to the third viewpoint and the two rights are inseparable. The third chapter is the rights situation corpus and condition, mainly to solve the practical problems of requesting right of recovering inheritance in China. The fourth chapter is the selection scheme of aging in requesting right of recovering inheritance. With the analysis of different aging rules of requesting right of recovering inheritance in other counties, this paper argues that the system apply to the double aging rules. Because of the limitation cannot create any rights, only the acquisitive prescription can create ownership for someone. So we can combined with limitation and acquisitive prescription to maintain the stability of economic and the safety in trade.