Study On The Guarantee Mechanism Of Bequest Maintenance Agreement

The Bequest maintenance agreement is a civil agreement concluded by mutual consultation between the parties,with "bequest" and"maintenance" as the main contents.The system descended from the institution of "five guarantees" which was used for many years in the early period,"bequest maintenance agreement" is evolved from the system of "five guarantees" and the legislator stipulated the system of"bequest maintenance agreement" into the Inheritance law,but the content is relatively rudimentary,with the development of social economy,the problems in judicial practice are constantly presented,Existing laws were no longer in a timely manner to respond to the many problems in the current reality and the needs of people's social concerns can not be satisfied.Therefore it needs to be re-interpreted and refined in order for the system to continue to be effective.Based on the judicial status quo of the bequest maintenance agreement,this paper makes statistics on the cases of the 2017 case as a "bequest maintenance agreement dispute",proceeded the analysis from the trial situation of the case,the relevant party information of the case and the contents of the agreement signed by the parties in the case,and investigates the trial level and the way of closing the case,the rate of appeal and Withdrawal,the agreed subject matter,the scope of the agreed bequest property,the claim and the reasons,the manner in which the agreement was entered into The parties choose the circumstances of the application of the bequest maintenance agreement and the age of the parties at the time of signing the agreement,then summed up the relevant provisions of the legal provisions on the Bequest maintenance agreement system,so as to find out the system in the judicial practice of the implementation of the problem:The"default"stipulated by law only makes a brief description of the subject,content,effect and dissolution of the Bequest Maintenance Agreement agreement,which can easily lead to different opinions in judicial practice of the agreement performance.The dependants provided for in the Bequest maintenance agreement are"persons or organizations other than the legal heirs"and completely exclude the legal heirs from being too narrow as dependants and do not meet the needs of practice,and the rights and obligations of dependants and dependants are not guaranteed enough.Procedures for rescission of agreements need to be improved,it can not be adapted to the diversity of the reasons for people cancel agreements in daily life.Then aimed at this problems developing solutions to solve it,for the imperfection of Legal provisions,the author thinks that the bequest maintenance agreement has the attribute of the contract based on the equality of its subject and the dual nature of the legal act,but also because the relationship between the bequest maintenance agreement has the nature of social mutual assistance and personal Trust,Nor could the requirements of contract law be fully applied,and therefore the norms applicable to contract law could be taken into account when legal aules applicable could not be found from the succession and no legal principles were found in the general provisions,in order to guarantee the performance of the rights and obligations,first,from not only material support but also spiritual care and other aspects to refined standards to protect the quality of life of the dependants,second,on the question of the narrow scope of the subject of the bequest maintenance agreement,the author thinks that the bequest maintenance agreement is established in order to find the absence of the obligation to fill the legal dependant,so it is more reasonable for us to determine the dependants of the bequest maintenance agreement first by dividing the bequest agreement with the boundary of whether there is a statutory maintenance and maintenance obligation.The legal heirs who do not assume the statutory maintenance obligation may also act as dependants.Third,for the dependant to dispose of the bequest property to constitute a breach of contract,the dependant can exercise the right of uneasiness,The right of revocation is to realize the relief in the matter and af terwards,applying Notarization Procedure,Notice Registration System and Guarantee System to to prevent.Fourth,through the joint efforts of the Government and all sectors of society,to achieve top-level design,basic implementation and supervision,medical and judicial protection together,made private supervision as the main,public supervision as a supplement to the multi-third party safeguards system,ensure the rights of the aged from all aspects.Finally,for the dissolution of the bequest maintenance agreement can apply the contract law,at the same time on the issue of the right to rescind the defaulting party,the author believes that only if the agreement endangers the public interest or violates the higher order power such as good customs can this right be enjoyed by defaulter,for whether Contract parties can enjoy the right of termination without any reason,The author thinks that It depends on the basis of trust between both sides to sign an agreement,if based on the trust of both sides,all of them have the right,and if the agreement enters into an agreement based solely on the trust generated by its own unilateral judgment,it does not enjoy the right of unilateral arbitrary dissolution,then combined with the provisions of contract law to resolve the aftereffect of the dissolution.