Research On The Right Of Claiming For Legacy Distribution

In 1970s,China began to fully implement the Family Plan Policy,the results of the Sixth National Census in 2010 shows that China has entered the Aging Society.More and more legal disputes arising from the aging of the society,and the inheritance disputes are particularly prominent.Compared to five years ago,the disputes concerning the inheritance of the people have increased by nearly 50%,in the past five years.This not only affects the normal operation of the social and economic order,but also has a great impact on family relations.However,China's provisions on the Right to Inherit at Judges Discretion is not perfect,throughout Chinese current legal system,the relevant provisions only the "People's Republic of China Inheritance Law"(hereinafter referred to as the "Inheritance Law")Article 14 and the "Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the Inheritance Law of the People's Republic of China"(hereinafter referred to as the "Opinion on Inheritance Law")Article 30,Article 31 and Article 32,and there is no other provision.According to the existing provisions of our country,the Right to Inherit at Judges Discretion is defined as the right of the person other than the successor to claim the right of inheritance.However,due to legal provisions and judicial interpretation on the right of claiming for legacy system is not clear,the main problem is how to determine the appropriate rights of the subject,and share with the infringement of the rights remedy.These problems exist in the system of right claims in China's heritage,which lead to the difficult operation of the relevant provisions in judicial practice,and the legislative purpose is difficult to achieve.In order to make a thorough study of the system of the Right to Inherit at Judges Discretion,the author mainly adopts the method of combining empirical analysis with literature research.Through consulting the judicial precedents of the past ten years,we find a series of problems in judicial practice,thus refining the problems that should be solved when we construct the system of claim.In order to find out the way to solve the problem,the author should carefully study the literature of experts and scholars,and also consult the relevant legislation of Japan,Korea,Germany and China's Taiwan region.We would try to find ways to build up the legal environment by our country,make the heritage to the right of claims system,protect the weak,and encourage people to help each other,so that we can be effective in judicial practice.Through the study and analysis of the typical case of the dispute by the Right to Inherit at Judges Discretion and the judicial adjudication of the dispute about the claim in the past five years,it is found that there is a large controversy and disagreement in the judicial practice,and the judicial dispute Performance in the"Maintenance" relationship,"Partially Given" and "All Given","Lack of Ability to Work and No Living Source" and other issues on the definition.This paper analyzes the social basis and legal basis from the perspective of defining the connotation of the claim,and demonstrates the value orientation and legislative purpose that should be established and persisted in constructing this system.At the same time,through the evaluation of the representation of the inheritance by several representative doctrines-"Claims Theory","Statutory Bequests Theory","Inheritance Theory","Special Nature Right Theory",the Right to Inherit at Judges Discretion which nature is a special claim.Based on this,the author through the in-depth study of the judicial referee instruments and the property of the Right to Inherit at Judges Discretion,to clarify the estate discretion to obtain the request and the implementation of the elements,the loss of rights and recovery,and the right to relief,more complete proof and specific content of the system discretion.Finally,the author puts forward the preliminary design of the provisions of the future of the civil code of the future,and hopes that the research of this article can be helpful for the improvement of the succession with the future civil code.The main innovation of this paper is based on the author's combination of nearly five years referee instruments,through the case of combing,summed up the issue of Chinese Judicial Trials,to support with data and materials,in the Right to Inherit at Judges Discretion system for specialized research Process,the construction of the estate to the discretion of the various requirements of the system to take the way to carefully analyze the study.The author believe that a complete system will be broken down in order to see its musculoskeletal texture.