On The Law Application Of Fetal Inheritance

Prior to the promulgation of the General Principles of the Civil Law,China did not have relevant legal provisions directly stipulating that the fetus has the right to inheritance,and just like some countries stipulated the "required share" system,which simply cannot meet the needs of judges in judicial practice.However,the promulgation of the "General Principles of Civil Law" and the publication of the draft"Civil Code and Inheritance" provide a certain degree of clear guidance for judges,because fetal interests such as fetal inheritance rights are regulated.However,these contents are only general rules,and various situations will occur in real life.Too general rules will definitely not meet the changing realities,so the legal provisions on the interests of the fetus still need to be detailed.Inquiry and legislation.China’s "General Principles of Civil Law" can be said to have made great progress in protecting the interests of the fetus.When the interests of the fetus have been violated,since the fetus is not a person in a strict sense,it is impossible to protect its rights and interests.Some people are needed to exercise these rights on behalf of the fetus,and obviously their parents should exercise them.In addition,whether the fetus can be conditional when accepting the bequest,because of the special nature of the fetus,the condition cannot be realized,and at the same time,the agent cannot achieve the attached condition at the legal level,because the fetus cannot be the object of the conditional gift.The above problems are all easily involved in the process of protecting the interests of the fetus in the future and should be resolved in a timely manner.The purpose of this article is to hope to provide some ideas for legislation to protect the interests of the fetus.This article is divided into four parts to explain the issue of fetal inheritance in China.The first part elaborates the theoretical background of fetal inheritance rights,the basis of fetal inheritance rights and the definition,starting point and end point of fetus.The theoretical basis of fetal inheritance rights in China is derived from blanket protectionism,which requires the investigation of blanket protectionism to ensure that the proposal of fetal inheritance rights is based on theoretical basis.The fetal inheritance rights are largely and The interests of the fetus are related,so this part will also mention the three theories of the protection of the fetus.This part belongs to the foundation and basis for studying the inheritance rights of the fetus.At the same time,because the fetal inheritance right has certain special characteristics,and there is a difference from the general inheritance right,this part has to do a certain discussion from when the fetal inheritance right starts and when it ends.The second part is the research on the status quo of fetal inheritance in my country,including the legislative status and judicial status.The judicial status will use the form of cases to discover the existing problems.Although the "Civil Law General Principles" of our country have made a decision on the inheritance rights of the fetus,the provisions are still too general.Under the background of the existing laws and regulations,judges will still have many disputes when trying cases.In this part,this article will discuss the legislative and judicial status of our country,and intend to expound and analyze some of the problems in the current fetal inheritance rights in our country,so as to compare them with the provisions of the "General Rules of Civil Law",and also reflect Progressiveness of the General Principles of Civil Law.The third part will elaborate and analyze the problems in the fetal inheritance right of our country.Including the definition of the fetus’s rights and capabilities in the General Rules of Civil Law is unclear,because the fetus’s rights and capabilities are the beginning of everything.The order and share of the inheritance of the fetus are unclear.The issue has not been clearly stipulated in the law so far,and this section will also propose some feasible suggestions.The right of the fetus to inherit the inheritance before or before birth is not clearly stipulated,and this issue is also a controversial issue in judicial practice.And there are no regulations on the application of the inheritance rights of the fetus,the regulations on the legal agent of the fetus are not detailed,and the regulations on whether the fetus can carry obligations when accepting the bequest are also vague.The fourth part proposes solutions to the problems in the fetal inheritance right one by one for the above problems.If you want to improve the problem of fetal inheritance in China at this stage,you need to provide more detailed provisions on this in the law,clarify the relevant provisions of the fetus’s rights and capabilities,clarify the order and share of the fetus’s inheritance,and the right to inherit the fetus before the birth 1.Determine whether the fetus enjoys the right of subrogation,clarify the applicable rules of the legal agent of the fetus,and clarify whether the bequest to the fetus can be accompanied by obligations.