On The Legislative Construction Of The Ownership Of Legacy Without Heirs Based On An Analysis Of Questionnaires Collected From Ten Provinces In China

When there is property inheritance,there is a possibility that no one will inherit anything.The acquisition of inheritance rights is mainly based on blood and marriage.These are the two types of relationships.Inheritance law is a property law based on kinship.Blood and marriage have a direct influence on the attribution of the heritage.At the same time,inheritance law is also an integral part of private law.The concepts of private rights sacrosanctity of and the autonomy of will are carried out.Therefore,family maintenance and individual wills are the fundamental purpose of heritage ownership.The ownership system of the absence of inheritance is the pocket system in the inheritance law,and the law concerning the heritage,is part of the legislation of the heritage,and should follow the principle of inheritance legislature.That is to say,in the absence of the legacy without heirs,it is also necessary to consider the will of the heirs.This deducing requires the support of empirical data.It follows that from the data obtained from the relevant empirical research work,the individual will is to realize the social public interest.Throughout most of the foreign legislation,the legacy without heirs generally belonged to the "public",but the specific attribution of the subject is not exactly the same,which determines that the standard system(such as the management of heritage,the announcement procedure)is also different.Due to the influence of the legislative ideology of the former Soviet Union,Article 32 of the “Inheritance Law” in China directly stipulates that the “state” and “collective ownership organization” are the subject of the legacy without heirs,and stipulates in detail the basis of the identity of the successor as the distinction of belonging,and the unaccepted heritage belongs to the public(state ownership and collective ownership).At the same time,the legislation also adapted to the social background of the economic development of public ownership,the prevalence of the "state standard" thought and the two-yuan household registration policy in urban and rural areas.However,since the promulgation of the inheritance law which has lasted more than 30 years,the social politics,economy and culture of our country have changed greatly.Some abuse of this legislative basis has appeared.Therefore,we should abandon the influence of these factors and return to the nature of the private law of inheritance and follow the will of the successors: to serve the social public welfare,The realization of the value of heritage is not necessarily achieved in the form of all forms of ownership or collective ownership.From the point of view of social public welfare,the current legislation stipulates that the collective ownership organization is obviously not suitable as the main body of unmanned heritage,because the collective ownership organization involves only the interests of the specific majority,and it cannot achieve the purpose of social public welfare without the inheritance of the heritage.Although the state can achieve the purpose of social public welfare without inherited heritage,the state bears the civil subject qualification of whether it bears the ownership of the property,and the civil law of our country does not make a clear definition about the state's civil subject qualification.The "Treasury Theory" provides a way for solving this problem in our country: giving the state the qualification of the civil subject by the name of the "Treasury"(the State Treasury is the private law of the state),and solving the qualification of the "Treasury" by the special heir theory to bear the unmanned heritage,thus making it clear that the Treasury is in the inheritance law: The specific position.The legislative construction of the subject of unmanned heritage should not only solve its theoretical difficulties,but also take into account the practical operation problems in practice so as to achieve the smooth ownership of the heritage.This involves the specific ownership of the national treasury of the unmanned heritage,the specific ownership of the movable and immovable property and the management and usage of the heritage ownership.Therefore,we suggest that,after determining the ownership of the unmanned heritage,the County Government Civil Affairs Department,on behalf of the County Treasury,specifically manages the "Heritage Fund",which is used to help the orphans and widows,the orphans and the disabled children,the special students,the special students,and so on.