Research On The Legal Issues Of Unilateral Abandonment Of The Right Of Inheritance

Article 1062,paragraph 1,paragraph 4 of the "Civil Code" stipulates: The inherited or donated property is the joint property of the husband and wife,except for the provisions of Article 1063,Item 3 of this law.Among them,the original "property acquired by inheritance" in Article 17 of the "Marriage Law" was revised to "property inherited".Behind the seemingly simple changes in text,it means that the definition of the scope of the common property of husband and wife in the Civil Code has different value meanings and logical tensions from the previous "Marriage Law" and "Inheritance Law".The core question is: whether the inheritance available to one spouse before the division of the estate belongs to the joint property of the husband and wife?If the heir unilaterally waives the right of inheritance,does it constitute an infringement of the rights of the spouse?In the pre-civil code era,the academic circles have two opposing theories about whether the inheritance before the division belongs to the joint property of the husband and wife,and there are two opposing theories,and both have seemingly sufficient and reasonable explanations.As far as the legislative level is concerned,my country currently fully guarantees the heir’s freedom to renounce inheritance,but this will undoubtedly involve the interests of his spouse and affect the determination of the scope of the joint property of the spouse.On the judicial level,is it effective to deal with disputes over the joint property of husband and wife in trial practice,especially if one party waives his share of inheritable inheritance alone? Does the other party have the right to petition the court to invalidate and determine it as the joint property of the husband and wife? As far as the current case of judgment is concerned,the courts have different positions,different paths,and many different ways,and they are inconsistent.This will eventually lead to different judgments in the same case,which not only jeopardizes the realization of the rights of the parties,but also affects the unity and authority of the statutory law.On the one hand,with regard to the effect of unilaterally waiving the right of inheritance,the "Civil Code" takes the stand of the heir’s sole intention to take effect.Among them,Article 1124 stipulates that the recognition and abandonment of inheritance rights occur in the time period between the beginning of inheritance and the completion of the disposal of the inheritance.The heir’s right to waive inheritance is an important part of the inheritance division step and is an important right of the heir to legitimately exercise the right of inheritance.The basis of its rights determines that the successor’s voluntary and legal exercise will become effective without the consent of others.On the other hand,the basic position of Article 1062,paragraph 1,paragraph 4 of the "Civil Code" is that the property inherited by one spouse during marriage belongs to the spouse.The fundamental reason for this legislation is to consider that most of the parents in the family live with their children,and the energy spent by the children in supporting their parents will affect their investment in marriage and the actual situation of the husband and wife taking care of both parents,and it is based on the establishment and promotion of China’s excellence.The purpose of the family tradition and the property inherited clearly belong to the attitude of the husband and wife.In our country’s inheritance legal system,we flatter the doctrine of natural inheritance.In this context,the “inherited property” in the joint property of the spouse can be divided into the natural inherited property and the determined inherited property based on the heir’s handling of inheritance rights in this context.The classification of "natural joint property of husband and wife" and "determined joint property of husband and wife" was born.If the heir gives up the inheritance before the division of the estate,the joint property of the husband and wife will be wiped out.Although the common property of husband and wife is eliminated because the heir waives the right of inheritance,we cannot ignore the reasonable interest enjoyed by the heir’s spouse in the inherited property.In order to protect both the heir’s right to waive inheritance and the spouse’s rights to the joint property of the spouse,and to balance the rights and interests of the spouses in the inherited property,the law should give the spouse a proposal when the heir chooses to refuse to participate in the inheritance legal relationship.Objection and request the right to retain his personal share of the estate.When designing the above-mentioned rights for the spouse of the heir,it is necessary to pay attention to the fundamental difference between it and the right of inheritance.The way of exercising the right should be restricted to stabilize the property right of the inheritance as soon as possible without prejudice to the maintenance of transaction security.