Research On Legislation And Judicial Practice Of The Right Of Inheritance In The Republic Of China

Many western concepts and theories introduced by the civil law succession in the republic of China constitute the cornerstone of the new succession system.The main concepts and systems introduced are: the concept of inheritance,the system of property,and the method of Roman law calculation."Inheritance of property" or "inheritance of inheritance" is a modern legal term originated from the west.The inheritance in traditional law cannot correspond to the inheritance in modern sense.In traditional law,family property is a common concept.The reform process of family property system is not to change the common status of family property into private property at once,but to realize by broadening the scope of relatives who can have private property one by one.In the traditional law,the distance between relatives was calculated by five clothes.The temple calculation method was chosen for "one grass of the law of the people",and the calculation method was changed to the Roman law for "civil code of the republic of China: relatives"(1931).In the civil law of the republic of China,the succession lines of the immediate relatives and other relatives were stipulated together,instead of regulating the succession lines of the immediate relatives separately,so as to complete the introduction of succession lines and remove the characteristics of succession lines in the inherent law.In the civil law of the republic of China,the strict legal provisions on the equality between men and women regarding spouses seemed to be an absolute progress for widows and widows.However,if we read the legal provisions and case documents correctly,we will see a different picture.When widows and widows got the legal right of inheritance,they also lost the right to manage property and other rights.In the civil law of the republic of China,there was no inheritance right for widowed daughters-in-law,and they were deprived of the right to manage their property under the traditional law.After the implementation of the new law,the interests of widowed daughters-in-law were reduced.In traditional law,it is common for a daughter to be born after marriage to have a different line of succession depending on whether she is married or not.The civil succession act,which took effect in 1931,superseded the previous law,ruling that daughters born in wedlock,whether married or unmarried,were legal heirs in the first order as were sons,meaning they were entitled to the same share of the estate as their brothers.In addition,the civil law of the republic of China improved the legal status of adopted children in property inheritance,and stipulated that the order of inheritance of adopted children was the same as that of marriedchildren.However,the share of inheritance of adopted children is also limited.The civil law of the republic of China stipulates that the share of inheritance of adopted children is half of that of wedded children,and only when the adoptive parents do not have a direct blood relative as the successor,the share of inheritance of adopted children is equal to that of wedded children.After the civil law was inherited and implemented,due to the conflict between the old and the new legal order,many people were deprived of the legal rights obtained in the old order.In the new legal order,the intention of the legislators could not be well implemented,and many people were confused about the rules and order under the new law.Many interested parties hope to resolve the issue through mediation and reconciliation rather than through a court trial,and folk customs still have a strong influence on inheritance litigation.Too strong legislative power is not conducive to the stability of the legal order,while too strong judicial power will destroy the unity of the legal system.In the period of the republic of China,the relationship between the legislative power and the judicial power was quite chaotic.The legislative power was in a strong position for a long time,and the law was made and amended frequently.As a result,the "paper law" became a form,stuck in books and not used in practice.In the period of the republic of China,the nationalist government had begun to try for judicial independence,but the kuomintang,holding the highest judicial power in the country,demanded the "party-orientation" of judicial personnel,which greatly hindered the development of judicial independence.