A Study On The Change Of Real Right Caused By Legacy

Bequest and indieritance are both important parts of the inheritance law.According to the provisions of Article 29 of the Property Law of People's Republic of China(hereinafter referred as the Property Law):they are coosidered as a special type of the transfer of real rights,which is not based on legal bekaviors.Therefore,both of them result in the transfer of real rights directly.However,it is still controversial whether the legacy can directly transfer the real right,which actually depends on the legislative mode of legacy and the transfer mode of real rights in various countries.Ouly by recognizing and summarizing the legacy and adopting the intentionalism theory on the transfer of real rights,the bequest can have the effect of the transfer of real rights,and thus the transfer of real rights can take place directly.However,under the background of the legislative mode of "distinguishing bequest from testamentary succession" and the formalistic theory on the transfer of real rights,it is inappropriate to connect the legacy with the effect of the transfer of real rights directly.There is a conflict in the legislation under the framework of the current law,because it lacks a certain degree of legitimacy.At the same time:combined with the inheritance law,it can be known that the execution of bequests shall not have an impact on the debt settlement of the legatee before his death.If the bequest is given the effect of the transfer of the real right,so that the legacy can be transfered directly,and there will be a problem if the creditor's right takes precedence over the real right.Meanwhile,because the will is private and the legatee is not the legal heir,the identity of the legatee can not be identified,which result in the creditors of the legatee being unable to accurately identify the legatee in time.It is also difficult to judge the value of the legacy and other information.In this way,it will put the creditors in a disadvantageous position,and threaten their interests,wtha negative impact on them.Coosequently,bequests should be seen as exercising the creditor's rights rather than property rights in China,that is:bequests can not be changed directly.In addition.Article 29 of the Property Law on bequests should be deleted.Because of the irrationality of the juxtaposition of legacy and inhetitance as the tpe of transfer of real rights which is not based on legal behaviors,from the point of view of interpretation theory we can distingui sh the validity of creditor's right and the time point of the transfer of real righus by "distinguishing the validity of creditor's right and the time point of the transfer of real rights".It makes it have the effect of creditor's right and real right step by step,which is also consistent with the principle of the formalism theory on the transfer of real rights in China.Special provisions can also be made for the legatee,through the way that "the creditor's right of the estate is recognized as a kind of 'priority creditor's right',and when all the estate debts have been paid off,the legatee can identify the real right of the legacy".Furthermore,special treatment can be made in the relationship between the legatee and the estate creditors,so as to reduce the adjustment of the existing law as much as possible.What's more from the perspective of legislative theory,the general bequest system is introduced into the inheritance law,so as to solve the contradiction of the effectiveness of the bequest,so that the legacy stipulated in Article 29 of the property Law specifically refers to the general bequest,which makes it more reasonable to apply similar rules to inheritance The part about bequests in Article 29 of the property Law can also be deleted directly,and this is also the most reasonable way to effectively solve the contradiction in the effectiveness of bequests.Article 29 of the property Law has been amended in the Civil Code of the People's Republic of China promulgated on May 28,2020.Article 230 of the draft stipulates:"where a real right is acquired as a result of inheritance,it shall take effect from the beginning of the suecession".The bequest part is deleted and the creditor's effect of the bequest is recognized.As a result,amending the legislation has not only laid a more solid legal foundation for judicial practice,but also marked the substantial progress of the Civil Code of the People's Republic of China.