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Study On The Effect Of Renunciation Of Succession By A Separate Marital Spouse

Posted on:2020-03-06Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y LiFull Text:PDF
GTID:2416330596480594Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The renunciation of succession in Article 25 of the Inheritance Law is an important part of the legal system of inheritance in China,and it has the institutional value of guaranteeing the independence of the heir and the freedom of will.In judicial practice,when a spouse is also a heir,the effectiveness of the behavior of renunciation of succession is often questioned by the spouse.The heir's spouse consider the behavior of renunciation of succession by the heir is invalid because it infringe his or her joint property rights,with the provision of Article 17(4)of the Marriage Law that Inheritance in marriage belong to community property in principle.The academic circles have also formed a two-party viewpoint camp of "effective " and "ineffective".Under the natural succession of the inheritance law adopted by our country,And according to the spirit of Article 29 of the current Property Law,the heritage property right is transferred to the heir from the beginning of inheritance.The “inheritance income” of Article 17(4)of the current Marriage Law shall be interpreted as the heir accepting inheritance,but once the heir has expressed the meaning of renunciation of succession,the effectiveness of the behavior happen at the beginning of the inheritance,The heritage property did not belong to the renunciation of the heir from the beginning,nor did it infringe on the joint property rights of the spouse of the heir.In addition to the personal exclusive of the behavior of renunciation of succession cannot be ignored,as well as the respect and protection of the inheritance and the freedom of the will,the spouse as a third person other than the heir can not interfere with his freedom to renunciate succession and force his interests,otherwise it will be contrary to the legislative purpose of renunciation of succession.Article 46 of the "Opinions on Inheritance Law" shall be limited to "the obligation to raise and support based on the relationship of personal inheritance".The behavior of renunciation of succession by a spouse will not result in the failure to perform the statutory obligation,and it is justified and effective.A spouse has the right to voluntarily renunciate succession,and its effectiveness is not invalid due to the spouse's claim.In order to solve the actual dispute arising from the effectiveness determination of a spouse to renunciate succession,the provisions of the Marriage Law on the marriageinherited marital inheritance should be modified to be in principle vested in the heir alone.For the purpose of stabilizing the succession relationship and protecting the interested parties,it is necessary to improve the ambiguity of the system of renunciation of succession that may affect the interested parties(such as the spouse of the heir): the behavior of renunciation of succession shall not be exercised by the agent,The meaning of the expression shall be made in strict written form to the opposite party,and the period of exercise shall be made within two months after the successor knows or should know that he is the heir while the succession begins.Based on the principle of fairness and the principle of consistency of rights and obligations,the right of acquiring property to spouse of the heirs who fulfill main duty of support during the deceased's lifetime should be given.The amount of the heritage should be determined on the basis of the fact that the spouse's obligation of supporting to the ancestor.
Keywords/Search Tags:the effect of renunciation of succession, the change of real right, community property, statutory duty, protection on the interests of spouse
PDF Full Text Request
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