Research On The Effect Of Bequest

The arrangements made by the deceased for the succession through the will can be divided into two methods: bequest and testamentary succession.According to the current Property Law,bequests,like inheritance,can directly lead to changes of property rights.However,the draft of the Civil Code has deleted the bequest in the relevant provisions,and only retains that inheritance can lead to changes of property rights.The Succession Law has never been clearly defined on this matter.Scholars have different opinions on whether the bequest can directly lead to changes of property rights,thus formed the opposition between the view of the effectiveness of property rights and the view of the effectiveness of claims.In judicial practice,the court also have different approaches,including determining the ownership of property rights and assisting in the transfer of property rights in the trial of bequest disputes.Whether the bequest should produce the effect of obligation or the effect of the real right remains to be determined.The effect of the bequest directly influences the scope of the liability property that can be used to repay the heritage debt,which may further affect whether the rights of the creditor of the beneficiary and the estate creditor can be realized,and whether the relevant property can be directly enforced.Although the effect of the current bequest is stipulated by the Property Law,the bequest is a system under the Inheritance Law.The analysis of this issue requires consideration of the linkage between departmental laws.This paper firstly discusses the disputes about the validity of the bequest from the aspects of legislation,judicature and academics,and puts forward the problems to be studied.Then it discusses the viewpoints from the negation of the effect of the change of property rights and the realization of the effect of obligation.According to the current view of the effect of property rights change,the analysis of the principle of property rights change and the composition of legal behavior in our country shows that if the bequest has the effect of property rights change,it will violate the provisions of the principle of property rights change,and there is no similar exception.Looking at the process from establishment to entry into force of the legal behavior,the bequest is a cause of death behavior.The occurrence of the fact of death is the statutory time for the legal action to take effect.Although article 29 of the Property Law juxtaposes bequests and inheritance,the same rule should not apply to them.As the process of succession begins,the heir not only has positive property,but also bears debt.The provisions of Article 29 on inheritance should be understood from the perspective of this principle.The general transfer of property rights at the beginning of succession,is the change of property rights in the first stage of inheritance.The status of heirs and of the beneficiaries in the process of inheritance are completely different and should not be confused.After denying the effect of property rights change,it is necessary to analyze how the effect of the obligation is realized,and also need to resort to the inheritance law.The third chapter makes a further explanation based on the provisions of the current Inheritance Law,the draft of the Civil Code about inheritance and the current theoretical research.Our country's law has strict rules on the time limit for beneficiaries to accept bequests,and must be done in a positive way.It on the one hand puts higher demands on the beneficiaries and on the other hand fully respects the willingness of the beneficiaries.After establishing the debt,it is necessary for the debtor to hand over the relevant legacy to the beneficiary.In addition,by comparing China's bequest system with the typical extra-territorial legislation,it is known that the beneficiaries in our country do not bear the obligation to repay the heritage debt due to the bequest.