On The Limitation Of The Successor Abandoning Inheritance Rights

Abandoning inheritance system is one of the important systems of modern inheritance law.Due to the historical background and legislative techniques when the inheritance law was enacted,the abandonment of inheritance system in China is too general and lacks of systematization.There is only one provision in our law,that is,Article 46 of the opinions on succession issued by the Supreme People's court restricts the heirs from giving up the right of succession.With the development of economy and society,the contradiction between respecting the will autonomy of heirs and protecting the legitimate rights and interests of creditors has become increasingly prominent,which has led to disputes on the application of Article 46 in judicial practice.In order to clarify the boundary of the heirs' abandonment of the right of inheritance and balance the interests of the heirs and creditors,this paper intends to study the factors that restrict the heirs' abandonment of the right of inheritance in China,and explore the rationality of the path of the restriction of the right of inheritance in China.In addition to the introduction and conclusion,the text is divided into four chapters.The specific contents are as follows:In the first chapter,according to the standard of limiting the right to give up the right of inheritance in China,through the analysis of the interpretative method,it is concluded that the standard purpose of article 46 of the opinions on inheritance is to protect other rights and interests and limit the right to give up the right of inheritance.However,through the review of the trial practice,it is found that article 46 has been extended to apply to the situation,but also appeared that the creditor exercised the right to cancel the way to limit the heir to give up the right of inheritance of the judgment.This causes this paper to think,why is article 46 extended? Is this expansion necessary? Is it reasonable to limit the renunciation of inheritance?The second chapter is aimed at the extension of Article 46 to protect the creditors of the decedent,in order to prevent the creditors of the decedent from suing,and to prevent the creditors of the decedent from being harmed by the improper act of abandoning the decedent.Through the study of the relationship between the abandonment of inheritance and the protection of the creditor of the decedent,it is found that although the decedent's abandonment of inheritance results in the disappearance of the legal estate management obligation,based on the previous possession or management,the decedent still has the estate management obligation before the next successor takes over.After the introduction of the administrator system,the abandonment of inheritance will not affect the protection of the interests of the creditors of the decedent.When abandoning the heir's improper behavior,even if we admit the effect of abandoning the inheritance,because of the limited inheritance doctrine of our country,the legislative intention of punishing the wrongdoer can't be realized,the creditor's interests of the heir can't be effectively protected,and even it violates the system purpose of abandoning the inheritance.Therefore,it is concluded that it is not necessary to restrict the heirs from giving up the right of inheritance in order to protect the creditors of the heirs.Expanding the application of Article 46 is not the best way to protect the creditors of the heirs.The third chapter for the creditors by way of the exercise of the right to revoke an avoidance give up the right of inheritance decision,Through studying the relationship between the renunciation of the right of inheritance and the protection of the successor's creditors,it is found that under the effect of renunciation of the law of inheritance in China,the renunciation of inheritance is a simple act of refusal of profits,which is not the object of the creditor's right of revocation and does not conform to its constitutive requirements.Even if it is based on the more radical principle of revocation right in civil law,the waiver of inheritance cannot be applied to the revocation right.However,Swiss law and Japanese law also exemplify that waiver of inheritance does not apply to cancellation rights.Therefore,it is concluded that the right of revocation cannot protect the interests of the heir's creditors when giving up the right of inheritance.The fourth chapter aims at forty-sixth creditors who have been extended to protect heirs.By analyzing the rationality of waiver of inheritance rights and the necessity of protecting the creditors of successors,it is found that with the economic development and social changes,the interests of creditors of the heirs are urgently needed to be protected.However,it is reasonable to protect the creditor of the heir by limiting the waiver of the right of inheritance.Comparing with extraterritorial experience,it is found that the way of limiting the right of inheritance in China's mainland is similar to that in France and Taiwan of China.Therefore,it is concluded that the expansion of Article 46 is the best way to protect the creditors of heirs.