Research On The Discretionary Heritage Distribution System

As a significant part of China’s inheritance system,the heritage discretionary distribution system makes up for the defects of legal inheritance and testamentary succession,enables our inheritance system more flexible and diverse,and plays an important role in practice.The system breaks away from the traditional inheritance mode of obtaining the right of inheritance by consanguinity or consanguinity,and empowers people other than the heirs who have de facto support relationship with the decedent to obtain the heritage,which not only retains the legality and stability of statutory inheritance and testamentary succession,but also considers the interests of people other than heirs.Aiming at modern families that are characterized by serious aging,diversified family forms,and miniaturized family size,heritage discretionary distribution system enables people other than heirs to claim to share the heritage according to the maintenance facts,expands the scope of heritage beneficiaries and flexibly achieves case justice.Article 1131 of the Civil Code of the People’s Republic of China excludes the provision that "persons dependent on the decedent" need to meet the premise of "lack of ability to work and no source of income",while other provisions continue to follow Article 14 of the Inheritance Law.This explains the need to further improve the relevant provisions of heritage discretionary distribution system.Therefore,in this paper,literature research,case analysis,comparative analysis and other research methods are comprehensively used to put forward suggestions for improving heritage discretionary distribution system in China.According to the investigation of heritage discretionary distribution system outside the territory,it is recommended that the system in Hong Kong,Taiwan,Germany and Switzerland acts as a paying obligation or responsibility,while that in Japan and South Korea reflects a certain degree of kindness.Regarding the applicant for the heritage discretionary distribution,it is stipulated in Hong Kong as "the person supported by the decedent before his death",in Taiwan as "the person who continued to support the decedent during his lifetime",and in Japan and South Korea as "persons with a special relationship" and the subject includes collective organizations.Germany stipulates that expectant mother who cannot make ends meet may request the heritage discretionary distribution.Germany and Switzerland stipulate that the discretionary share of the inheritance cannot be higher than that of the heir.Japan and South Korea stipulate that the inheritance participating in the discretionary distribution must be unowned property,in order to prevent the unowned property from belonging to the State,and according to the degree of special relationship before the discretionary distribution,the reasonableness of the division of the inheritance is judged by the various factors of the heir and the decedent.There are still some significant challenges through the analysis of the current legal provisions and judicial practice,such as the unclear nature of the discretionary distribution,the insufficient diversification of the subject scope,the ambiguity of the subject’s right acquisition requirements,the lack of consideration factors for the heritage discretionary distribution,and the insufficient procedures for the exercise of rights.Accordingly,this paper puts forward the following suggestions.In terms of the nature of the heritage discretionary distribution,the nature of the creditor’s rights of the heritage discretionary distribution and the ownership of the debts borne by the decedent should be clarified.As for the subject of the heritage discretionary distribution,the collective organization should be added as the subject and the acquisition elements of the different subjects of the heritage discretionary distribution.Regarding the basis and amount of heritage discretionary distribution,the basis should be refined and the "discretionary" criteria should be cleared.Finally,for the procedures,it is suggested that the pre-litigation procedure should be established and the issue of limitation of action should be clarified.