The Study On The Discretionary Heritage Distribution Right

The discretionary heritage distribution right is based on the facts of support,and the legal subject other than the actual heir is given the right to properly separate the inheritance.Article 14 of the Inheritance Law divides the main body of its rights into two categories,namely,People who lack of ability to work and have no source of life supported by the deceased and who have more support for the deceased.The discretionary heritage distribution right make the non-heirs who have support relationship with deceased be included in the scope of inheritance,and it will take precedence over the legal inheritance.This is undoubtedly a great breakthrough in the inheritance of family property in blood relatives and in-law relations,which makes the way of obtaining the inheritance more diverse,and reflects the principle of the consistency of rights and obligations,while effectively combining social interests with personal interests.The existence of this right is based on the idea of support after death,the theory of presumption of the deceased,the legislative orientation to protect the weak and encourage and reward the maintenance behavior,and is of great significance for solving the problem of protection of rights and interests arising from the new family structure and family form.However,the provisions of the inheritance law of China on the discretionary heritage distribution right are too general,and the powers of splitting or not,splitting more or less are fully given to the judges.In the specific case,there are certain differences in the interpretation and application of the law,and no unified standards of the referee and the procedural chaos have caused the purpose of the establishment of the right not to be fully realized;the discussion in the academic circles is also divided into different opinions.In view of the problems currently faced in obtaining and exercising the discretionary heritage distribution right,this paper analyzes problems through the three dimensions of legislative status,judicial practice and theoretical controversy.Combining with relevant foreign legislative experience,it finds that the current legislation in China has the following urgent problems need to be explained and improved.Firstly,the legal nature of the discretionary heritage distribution right is not clear.The academic circles have the right to inheritance,the legal legacy,the special rights and the claims.The different natures directly affect the legal effect of the right.Secondly,the scope of the subject of the right is not clear,such as whether the subject of the right includes the legal heirs who has not actually inherited the inheritance,how to judge the specific conditions for people supporting or being supported by the deceased,whether the subject of duty includes the testamentary successor.Thirdly,restrictions of the discretion of the estate and amount considerations are not sound,what is “appropriate”,how to determine the specific discretionary amount and whether the upper limit of discretionary amount should be set.Fourthly,the rules for the exercise and protection of the discretionary heritage distribution right are imperfect.The inheritance law does not stipulate under what circumstances the right holder waives or loses his rights,and the right holder should exercise his right to whom.Besides,there are controversy about the starting point of the statute of limitations.Due to the ambiguity of legislation,the interpretation of law in judicial practice is confusing,and the judgment results are not proper.The key to solving the above problems lies in clarifying the "supporting" characteristics and setting concepts of the discretionary heritage distribution right,and paying attention to the balance of interests of the heirs and the discretionary right holders.First of all,to clarify the nature of the discretionary heritage distribution right,it can be further argued that its legal effect takes precedence over the bequest and then the ordinary creditor's right.At the same time,it is argued that the right applies only to statutory inheritance,and does not limit the freedom of will,which is different from the system of mandatory reservations.According to this,it can be known that the subject of the right does not include the testamentary successor.Secondly,it is necessary to interpret the conditions for the recognition of the two types of subjects of the right from the dynamic perspective,define the connotation of “lack of ability to work”,“no source of life” and “more support”,and clarify the distinction and connection between the discretionary heritage distribution right and the right of inheritance.Besides,the widowed daughter-in-law and the son-in-law should be included in the adjustment range of discretionary heritage distribution right.Thirdly,the consideration of the discretionary amount of the estate is determined,and the upper limit of the discretionary amount of the person who relies on the deceased is set so that it does not exceed the amount any heirs actually gained.Finally,the rules for the exercise and elimination of the discretionary heritage distribution right are improved,including establishing an administrator system,regulating the subject of the right,establishing a system of waiver and loss of the right refer to the relevant provisions of inheritance rights,and according to the essential characteristics of the discretionary heritage distribution right,clarify the starting point of the statute of limitations.