The Introduction Of Surrogate Succession System

The surrogate succession,also defined as sub-inheritance or alternative succession,means that a testator designates an heir in his/her will to inherit his/her property interests except for another heir inheriting his/her property interests when the condition stipulated in the will is satisfied or the period ends.The surrogate succession system is derived from the will trust system of the Roman Law.At present,different countries hold different positions on the surrogate succession system.Countries such as Germany,Austria and Switzerland hold a positive attitude towards the surrogate succession system;while France,the Netherlands and other countries,however,are against it;there has not been any surrogate succession system in China yet.In theory,the introduction of the surrogate succession system can extend the controlling period for the testator,reflecting the freedom of will.In practice,the introduction of the surrogate succession system acts as a guidance for some family property disputes.Attention is drawn to the fact that cases regarding the surrogate succession system have occurred in practice already.And it is common that there are many wills about the surrogate succession system which haven't accessed the litigation.There are similarities among the surrogate succession system,the testamentary trust system and the supplemental inheritance system.However,the testamentary trust system and the supplemental inheritance system failed to substitute the surrogate succession system.Therefore,it should be an important part in the revision of the Law of Succession of the People's Republic of China to establish thesurrogate succession system.There are two focuses of theory about introduction of the surrogate succession system.First,it is believed that the surrogate succession system conflicts with the property system.The ownership owned by the former heir is incomplete and insufficient.The right owned by the former heir is the right to hold,use and derive income without the right to dispose.The paper considers,however,that the former heir owns the complete ownership after the first inheritance activity commenced in the surrogate succession system.In fact,the former heir owns the complete ownership.The former heir has to transfer the heritage to the latter heir when the condition stipulated in the will is satisfied or the period ends because he bears the liabilities to the latter voluntarily.The latter owns the obligee's right from the former and will inherit the property when the condition stipulated in the will is satisfied or the period ends.Based on the obligee's right,the latter has the rights to establish the real rights for security to ensure the realization of his/her obligee's rights.Second,what is the the nature of the right of inheritance about the latter heir when the condition stipulated in the will is satisfied or the period ends.The paper considers the latter doesn't own the right to exclude other people and obtain the legacy realistically until the condition stipulated in the will is satisfied or the period ends.At that point,the right owned by the latter heir is the right of expectation and it is incomplete to exercise.When the condition stipulated in the will is satisfied or the period ends,the inheritance right owned by the latter becomes exclusive as the element of establishment is complete.The key point of legal relations is to distinguish the nature of the right of the latter heir in the surrogate succession system.There are three periods.The right of the latter heir is as the right of the heir in the testamentary succession during the first and third periods.During the second period,the latter heir owns the right of inheritance.In terms of the completeness of the element of establishment,the right of the latter can be classified into the right of expectation.In order to make sure that the latter heir can own the property when the condition stipulated in the will is satisfied or the period ends,the latter heir also owns a relative right.Based on the aforesaid definitions of the right of the latter heir and the deconstruction of legal relationship in the surrogate succession system,this paper builds a basic theoretical basis for the surrogate succession system.The elements of legal relationship is comprised of the subject,the object and the content.In the surrogate succession system,the subject involves both the former heirand the latter heir.According to Law of Succession of the People's Republic of China,the scope of the former and latter heirs is limited to the testator's spouse,children,parents,brothers and sisters,grandparents and maternal grandparents.Widowed daughters-in-law and sons-in-law who have made the predominant contributions in maintaining their parents-in-law can also become the former heir or the latter heir.The object should have the characteristic of non-consumable,e.g.immovable properties such as real estate and land,movable properties such as calligraphy and watches.The content of the legal relationship involves the rights and obligations of the former and latter heirs.The former heir,as the owner of property,has the right to possess,use,derive income and dispose the legacy before the condition is satisfied or the period ends.On the other hand,bearing the liabilities to transfer the ownership of the legacy when the period ends,the former heir also bears the obligations of care,informing,delivery and guarantee that may be asked by the latter heir.The latter heir has the following rights: to ask the former to provide a guarantee,to supervise the former's actions,to make inquiries about the status of the legacy and to claim for damages.The latter heir also has the obligation of enduring the reasonable consumption of the legacy used by the former.For the damage caused by the legacy,the latter heir also has the obligation to allow the former to take actions to dispose the legacy for compensation or preventing the depreciation.In general,in a complete surrogate succession system,there are former heir and latter heir.The ownership of the legacy will be transferred twice except that: the former or latter heir dies before the condition is satisfied or the period ends,or the former or latter heir waives or loses the right of inheritance.In order to introduce the surrogate succession system,from the perspective of legislative,it should include the legislative mode,the perfection and the limitation of the surrogate succession system.According to the narrow concept of inheritance in the Law of Succession of the People's Republic,for the legislative mode,we can refer to the treatment of the surrogate succession system in various countries and stipulate the system into the testamentary succession.In terms of establishing and perfecting the surrogate succession system,it mainly involves defining the scope of the heir,the trigger condition,the rights and obligations of the former and latter,the cause of extinction of the succession and so on.This paper also pays attention to the following aspects such as the times or period of inheritance and the interest protection of third parties.