Study On Discretionary Heritage Distribution System

The discretionary heritage distribution system is a kind of system that can share a certain amount of inheritance according to the law after the maintenance relationship is formed between the person other than the successor and the decedent before his or her death.It is a way to transfer the inheritance.In this paper,the concept,nature,historical origin and function of the discretionary heritage distribution system are summarized.Secondly,it examines the relevant systems outside the region and compares them with the discretionary heritage distribution system in mainland China.Then it analyzes the problems existing in the legislation and judicial practice of the inheritance system in our country.Finally,according to the above discussion,the author puts forward some suggestions to improve the discretionary heritage distribution system in China.This paper consists of an introduction,a body and a conclusion.The body consists of four parts:The first part is an overview of the discretionary heritage distribution system.This part first introduces the concept of inheritance and draws its characteristics by comparing it with the legal inheritance system.Then the author makes a brief analysis of its historical origin in China.The system originates from the regulations on dividing the property of redundant son-in-law and adopted son in the song dynasty.At last,the paper discusses that the discretionary heritage distribution system has the function of protecting the weak,making up for the deficiency of the existing inheritance system and realizing the fairness of individual cases.The second part,the legislative review and analysis of relevant systems overseas.This part investigates the relevant systems in Japan,Korea,Hong Kong and Taiwan.In addition,the paper compares the differences in the applicable premises,types of right subjects,exercise of rights,share of inheritance and consideration factors of the relevant systems in different regions,and analyzes the reasons.This paper attempts to provide ideas for improving the discretionary heritage distribution system in China through the above analysis.The third part is the reflection of our inheritance system.This paper analyzes the deficiency of the discretionary heritage distribution system in legislation and judicial practice.At the legislative level,the provisions of the discretionary heritage distribution system in China are relatively general and not operable.It is embodied in the following aspects: disputes over the nature of the right of inheritance decentralization,defects in the standards for the identification of the subject of rights,vague order of the realization of rights,excessive fluctuation of the share of the right to take action,factors for the lack of the right to take action,and provisions on the exercise of the right to take action.From the perspective of judicial practice,through the analysis of some typical cases,the author finds the practical operation problems of China's discretionary heritage distribution system.For example,the causes of the listed cases are not unified,the types of defendants are confused,and the judge lacks sufficient argumentation in determining the proportion and consideration factors.The fourth part is the perfection of the discretionary heritage distribution system of our country.In view of the problems existing in the legislation and judicial practice of the discretionary heritage distribution system in our country,combined with the legislative status quo outside the region,some suggestions for improvement are put forward.First,it is a legal creditor's right to determine the nature of the right of inheritance decentralization.Secondly,it is clear that the precondition for the application of the classification system of inheritance is the legal inheritance or the situation of no inheritor.Third,the person with the right to divide the estate is a person other than the person called to inherit,and shall receive no equivalent bequest.A person relying on the decedent for support shall continue to be supported by the decedent in life or financially until the death of the decedent.We should judge whether the maintenance of the heiresses has reached a higher level according to the general concept of the society.It is also suggested that the inheritance of widowed daughter-in-law and son-in-law to parents-in-law and parents-in-law,as well as those living together who do not violate public order and good customs,should be subject to the discretionary heritage distribution system.In the absence of a successor in subrogation,the share of the share Shared by the widowed daughter-in-law or son-in-law who has made the principal contribution in maintaining the family may be divided with his estate in accordance with the present provisions.Those who have made greater contributions may be dealt with in accordance with the upper limit of their respective share.In the case of a successor by subrogation,they were all allotted property in strict accordance with the general rules.Fourth,the right of inheritance should take precedence over the legal right of inheritance,and be inferior to the creditor's right of ordinary inheritance.Fifth,in statutory succession,the proportion of shares to be divided shall not exceed one half of the statutory shares to be followed.In the absence of a successor to the estate,the person with the right to divide the estate may share part or all of the estate.It is suggested that the status of the estate,the situation of the competent parties and the successors,and the living will of the decedent shall be taken into account when determining the share.Sixth,the new rules for the exercise of the right of inheritance decentralization.