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Discussion On The Types And Time Limit Of Repentance After Abandon Inheritance

Posted on:2020-07-01Degree:MasterType:Thesis
Country:ChinaCandidate:D DongFull Text:PDF
GTID:2416330623954110Subject:Law
Abstract/Summary:PDF Full Text Request
The renunciation of succession,also known as the “renunciation of succession”,“renunciation of succession” and “renunciation of abandonment”,refers to the system in which the successor can renounce the succession when certain conditions are met after the party renounces the succession,which is a great guarantee for the right of the party who renounces the succession.At present,some countries in the world have made provisions on abandoning the system of succession and repentance,with the purpose of guaranteeing the autonomy of the will of the successors and balancing the interests of the successors,successors and creditors.There are two parts in the system of repentance after abandon inheritance.The first part is the focus of the system.In terms of legislative cases,most of the provisions on the reasons for abandoning inheritance and going back on the law focus on the expression of will,and different countries have different emphases(this paper classifies them into four types according to the reasons for abandoning inheritance and going back on the law).About our country “the supreme people's court to carry out the succession law of the People's Republic of China” views on some issues of article 50(hereinafter referred to as“inheritance law opinion”)also is regulated to go back on our word,but only after disclaims inheritance can go back on our word and turn back time limit,for the most important part of regret-reason did not make clear a regulation,but only expressed as“put forward by the people's court according to its specific reasons,to decide whetherto admit”,this regulations caused a practice case processing.In China,the amount of waiver of succession is relatively large,which concerns the interests of the heirs and relevant creditors.However,the inheritance law and opinions on inheritance law in China have no systematic provisions on the system of renouncing inheritance and there is no systematic theory in the academic circle.On the one hand,it is difficult to convince the parties concerned,and on the other hand,it leads to a large number of cases with the same case and different judgments,which damages the judicial authority.Therefore,it is necessary to discuss the reasons and time limit for abandoning succession.After sorting out a large number of cases of abandonment of inheritance,this paper first sorts out a large number of cases of arbitrary betrayal in practice.In the author's opinion,China should not recognize “willful retracting”,that is,the reason for retracting can only be based on clear provisions in law.In this part,the author introduces a case to illustrate that there are a large number of cases of abandoning inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance and backing out of inheritance.The author is opposed to it.On one hand,although the civil law stipulates the autonomy of will,it is not unlimited.On the other hand,giving up inheritance is a unilateral civil juristic act.Finally,giving the successor the right to go back on his word would defeat the purpose of giving up the succession system and would not conform to the principle of good faith in civil law.Type two is default.If both parties stipulate that the succession shall be waived by contract,they can naturally exercise their rights and perform their obligations in accordance with the contract.In the case of breach of contract,the first thing to be considered is whether the breach under the estate division agreement can be used as the reason for breach of contract under the system of breach of contract.It depends onthe comparison between the compensation amount agreed by the two parties and the value of the share to be inherited.However,the value of the compensation amount does not necessarily reflect the agreement between the two parties on the abandonment of inheritance or the agreement on the form of inheritance distribution after the acceptance of inheritance,but is only one of the qualitative basis,and the true feelings of the two parties should also be discussed.Secondly,there are a lot of confusion between consideration and conditional conditions in practice,and the court mistakenly admits that the breach of the agreement to give up the heir is a mistake of law application.Finally,there is a special type of breach of contract,that is,the gift of collateral obligation,which is different from the general breach of contract and can not exercise the right to terminate the contract.Type three is the defect type.The general motive error under the inconsistency of intention is irrevocable.For the exception of the motive error,that is,the nature error,the appearance of the motive outside,the motive is known to the other party,and the two parties' motive error,the motive error may affect the effect of giving up the succession act.It should be considered that the attribution error of the estate after the abandonment of inheritance does not belong to the nature error,it does not have the importance of transaction,and it should not be considered as the error of expression of will under the inconsistency of expression of will.In addition,according to the interpretation of the word “et al.” in article 71 of the opinions of the general public,the author believes that the understanding error of the abandoned successor on the value of the estate can be revoked.The error of understanding of other successors does not belong to “material” and is irrevocable.The error of understanding of the owner of the property in dispute is of transactional significance and can be revoked.The waiver of inheritance under the condition of not free expression of will can be revoked according to the general theory of civil law.Type 4 is the notarized defect type.As a procedural defect,notarization defect is not a reason for going back on one's words.Back after reason,it is necessary to go back on our word of the time limit is discussed,because of the inheritance law opinion article 50 rules only in processing before or litigation “heritage”,regret if based on breach of contract or meaning said defects reasons,but time has passed “heritage” before processing,the inheritance law opinion article 50 should think is special provisions on the time period.This paper also discusses what is “bequest before disposal”,especially how to judge that the estate has been disposed.
Keywords/Search Tags:renunciation of succession, any regret, default, intention defect, time limit
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