Japan Comparative Study of Legal Systems of Inheri

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Japan Comparative Study of Legal Systems of Inheritance

Of: Bo Meng [Abstract] This article discusses the law of succession in the Japanese legal inheritance on comparison of the difference. Furthermore, the proposed amendments to the Law of Succession in China some feasible suggestions. The main questions focused on spouses in the order of succession; nature of subrogation rights of succession; widowed daughter or son of the order of succession and so on. Hope that their favor can be presented and discussed the early development of the Civil Code! [Tags] legal successor by subrogation right of inheritance the current order of succession, for the development of the Civil Code has been referred to the legislative agenda of the NPC. China's Proved more than a decade, the 1985 However, as China joined the WTO after the socialist market economy development,[link widoczny dla zalogowanych], the original Third, the widowed daughter or son of the order of succession issues. Therefore, this in reference to foreign legislation (especially the Japanese inheritance law) experience, combined with our Legislative and Judicial Practice, as is being revised in the A spouse in the statutory order of succession issues in the legal successor of spouses in the order in question, children, parents. Second in order: brothers and sisters and grandparents. ① Second priority: the immediate respect for the deceased relatives. Third place: the deceased brothers and sisters. The spouse of the decedent is constant heir. ② blood heirs (direct ascendant) common heritage, their heritage should be divided into the following 2 / 3; and third overall in the blood heirs (brothers and sisters) common heritage, their heritage should be divided into the following 3 / 4. ③ articles from the above comparison, we might ask: Why is the order of the spouse as the first heir to the Japanese spouse is not included in the order of succession fixed it? (A) the spouse of the reason the legal successor of the first order included mainly the following two aspects of history and reality to be considered: 1,1985 years of spouse, children, parents listed on the first order was mainly due to the prevailing historical conditions of the decision. From China two thousand years of feudal history, the inheritance system of feudal society, the provisions of the spouse rather negative, most of the time all the property of the deceased (especially all the property of the deceased men) as if the deceased's estate, so that the deceased's spouse and children on a per capita allocation, which may damage the spouses should share in the inheritance! Such as . Based on this historical background of China 1985 2,1985 years of At that time, is in the planned economy period, relatively speaking, a small number of personal property of citizens, while the social security system and is very imperfect, resulting in families of citizens is enormous pressure on the citizens to support their parents, to support the next children, domestic economy but also to assume the burden of the family. Therefore, once the couple have one unfortunately died young, and he (she) must play protect the family legacy, the basic old-age child-care social functions. Therefore, China's In conclusion, my 85 years, , its social value and practical effect is worthy of recognition. However, with the changes historical period it is also the unanimous choice to be perfect! (B) In contrast, the Japanese Civil Code provides for a spouse with no fixed order. The reason it is intended to do so while safeguarding the interests of the spouse and blood relations interests of the deceased. We can illusion: If the spouse is fixed to the first order, in the absence of immediate base blood, its all by the spouse inherits all the estate, the deceased's parents and collateral blood can not get heritage, this certainly does not meet the wishes of the deceased. And the spouse as the second order, in a direct blood humble circumstances, the spouse will get nothing, which is the dead do not want. Therefore, the Japanese Civil Code does not include the spouse of a fixed order of succession of the deceased, this approach balances the interests of both spouses and blood relatives, but also reflects the wishes of the deceased's part, can take care of the basic realization of the living and the inheritance rights of fair estate of the deceased the purpose of two-way distribution of social functions. (C) of the analysis, the author proposed revisions of . This theory, most of the world in terms of inheritance consistent with general practice, to protect the heritage of the immediate family of the deceased within the collateral flow and prevent the spread, while protecting the deceased spouse and the lineal rights of the common inheritance. View from real life, this will help solve one after the death of both spouses, the deceased spouse and immediate blood family share of the estate between the deceased on the handling of the relationship will help to resolve the contradiction between real life and maintain within the family live in unity, to create a good social and family atmosphere. Second, the right of subrogation nature of subrogation rights of succession on the nature of the problem in general can be divided into China's Subrogation generally can only inherit his father or mother of the decedent's children died before the decedent's right to inheritance share. ④ an heir. ⑤ (Note: eight hundred and ninetieth a requirement that the five successor is disinherited the subject.) From the above comparison we can find our Therefore, people are the inheritance rights of subrogation subrogation is the basis and foundation of human inheritance, was the loss of inheritance rights of subrogation or deny human inheritance, their immediate family members that no bit of base generation, and therefore can not be inherited. French Civil Code, Civil Code of Italy and Germany, the old common law adopt this position. ⑥ The Thus, by the loss of inheritance rights of subrogation of people to give up the right of inheritance, their immediate family members can base their inherent right on behalf of their place and inheritance. New Italian Civil Law, German Civil Code, the Swiss Civil Code, Civil Code of Japan and China have adopted the civil law in Taiwan said. ⑦ author proposes amendments to China's This is mainly the representation that our existing legal and practical face the double challenge. (A) that the representation from the legal perspective difficult to justify. 1, represented that there are back at the basic principles of civil law. Principles of Civil Law provisions of the civil rights of natural persons ability to begin at birth, and finally death. Successors from the time since death, and its ability to terminate the civil rights, elimination of the main qualification to the qualification in mind the right of inheritance has also come to look forward to eliminate, of course, the legal status of succession no longer exist. Therefore, no matter who is killed by subrogation or loss of inheritance, the generation of bits one can go there instead of a fact the legal status of inheritance. Violation of civil rights on behalf of said capacity on the basic principles of natural rights, and therefore can not be established. Solid subrogation claim the right to say his successor is based on the inherent rights of inheritance, the representation that can overcome this contradiction. 2, the representation said that the subrogation right of inheritance can not explain the real basis. Representation that does not explain why the law requires that certain heirs of the decedent prior to death, their immediate family members can inherit in subrogation base, while others are heirs of the decedent prior to death, their immediate relatives can not base subrogation. Only solid right to say this issue can be satisfactorily explained. In accordance with the solid right to say, is the legal successor of subrogation successors have been within the scope of people, but the survival of people being subrogation, in accordance with the subrogation of the decedent who died before or loss of inheritance right, they are based on their qualifications and rights of the heirs, who according to the instructions of subrogation and shall continue copies of the order of succession, the direct successor of the decedent's property. 3, the representation said that the legislation does not match and the values of modern civil law. Death of their parents because of the illegal and criminal acts loss of inheritance, resulting in their children can not inherit the decedent bear the adverse consequences of the property, which is back on the principles of modern civil law at your own risk. (B) the representation that exists in real life many of the embarrassment. 1, the parents have died of the (outside) grandchildren, their (foreign) grandparents implementation Article VII of the act to exercise the right to inheritance, so the (outside) grandchildren can still subrogation right of inheritance. It is difficult to reflect the legal principle of equity! 2, (outside) grandchildren because their parents implemented the This certainly is not conducive to family stability and unity of the creation of the environment is not conducive to the stability and development of the whole community! 3, if the heir is the sole heir of the decedent died after the loss of inheritance, heir to the estate were about to be resumed by the state or collective ownership, which inevitably leads to collateral blood relatives of the decedent's dissatisfaction, but also back in the decedent's wishes, so difficult to operate in real life to achieve, thus reducing the solemnity of the law! (C) of the analysis, based on the protection of citizens personal and property interests and maintenance of the decedent's legitimate right of inheritance considerations, I propose in our subrogation right of nature, using solid right to say to explain the legal reality that exist in many problems, and propose to expand the right of subrogation people and reduce the private property of citizens was Three, widowed daughter or son's inheritance rights China's ⑧ The The reason why the provisions of this legislation is intended to encourage or widowed widowed daughter-law support for the elderly, to ensure that the elderly have lost their children a happy life in his later years. At the same time, but also among citizens in order to safeguard the rights and obligations. However, this legislation there back in the right of inheritance is based on the specific status of property rights enjoyed by the generally accepted theory of the world. As Marx said, in the direct blood flow, likely to cause our country's private economy, private economy is difficult to enhance the economic strength, business scope is too scattered, not conducive to China's economic system after joining the WTO to participate in international competition, does not meet the group of the global economy, large-scale trend. Therefore, I propose the amendment of the new property. At the same time, they can, according to the provisions of the legal successor of the first order due share of the distribution of the estate. In summary, the legal succession in the Japanese system of analysis and comparison, the author specifically for the revision of the spouse's legal successor to the fixed order of the sequence can be summoned with Ren Yishun common inherited heir. The amount of the spouse inherits the estate according to the number of specific provisions of a spouse deserve progressive ratio. (B) change the basis of representation that the subrogation right to inheritance system and said by solid theory. While expanding the scope of subrogation successor, the proposed increase of the decedent's brothers and sisters and their children the right of subrogation. (C) delete Thus, the need to adapt to the times of social legislation achieved under the premise of the law in the integration of the international community! In short, the hope that the Sino-Japanese inheritance law by the legal successor of the comparative study, we can work our cubic practice some useful suggestions and ideas, leading to faster implementation of the Civil Code, the compilation of work, but also good service to our country's socialist modernization construction work for the realization of economic goals of the party Shiliu Da determined to forge ahead! [Author] Bo Meng, Shandong Texas male (1978 ~) is the Lanzhou University Faculty of Law Graduate [References] ① ④ ⑧ People's Republic of inheritance [ ,],[ ⑥ ⑦ Chen Wei, Du Jiang Yong,