论继承契约的立法建议

发布时间：2018-06-21 03:11

本文选题：继承契约 + 财产处分　；参考：《浙江大学》2017年硕士论文

【摘要】：《中华人民共和国继承法》(下文简称《继承法》)颁布于1985年我国改革开放政策实行后不久,从当前《继承法》的内容可以知道,当时《继承法》的颁布与施行依法确立了对公民私有合法财产进行保护的原则,激发了公民作为自由主体的生产力与创造力,在改革开放初期发挥了重要的作用。但是近三十年来,我国的社会经济文化各方面都发生较大变化:经济上我国的个体私有经济迅速发展,国家经济状况发生了重大的变化;社会文化方面,社会家庭结构的不断改变与缩小,中国传统的家族观念的逐步淡化;社会文化越来越开放,具有包容性。司法实践中,我国《继承法》》出现适用上的局限性,遗嘱、遗赠和遗赠扶养协议等继承遗产的方式在发挥作用的同时也体现了不足之处,无法满足当前社会背景下民众的现实需求。其中值得一提的就是近些年社会生活中多次出现的自然人通过和包括法定继承人在内的其他自然人订立契约的方式协商如何安排自己的扶养和遗产继承的问题,随着这种情况的普遍发生,法律上应该认定这类契约的性质,是否具有法律效力,这目前还是我国立法的空白点,很有必要值得我们研究。而国外流行的继承契约与这类契约又非常相似,因此,结合我国当前的社会基础、经济基础和文化基础,以及我国多年的司法实践经验,《中华人民共和国民法总则》的颁布提供的良好契机,笔者认为提出《继承法》修订时引入继承契约制度的立法建议是很有理论价值的,也是通过立法进行我国法治建设的新举措。本文主要先阐述当前我国《继承法》有关处分遗产的法律行为及其立法缺失,之后通过分析司法实践中发生的一起典型案例,引出当前社会生活中存在的被继承人与其法定继承人生前签订协议的现象,安排和处理自己的生前扶养,死后个人财产归属的问题,并且说明这些现象具有普遍性,但是我国目前的《继承法》却不能找到判决这类案例的请求权基础,从而以实例说明我国《继承法》适用上的局限性,之后笔者主要针对法院对该起典型案例作出的判决进行分析,包括两个法院的不同观点,之后笔者通过相关的理论知识阐述法院判决的合理与不合理之处,针对该典型案例的焦点问题,提出自己的观点,最后得知类似这类继承契约的案例是我国当前《继承法》的空白点,并没有相关的法律依据,所以值得我们去研究与解决。同时通过参照国外解决该类类似案件的继承契约制度,说明我们可以进行借鉴,以及我国当前理论界对于继承契约的看法,之后进一步论证在我国增设继承契约制度的必要性和可行性,最后通过以上的理论分析,并且结合我国的社会实际情况,得出解决的方案,即建议立法者在《继承法》修订时新增继承契约制度,弥补我国立法的空白点,并且针对如何具体详细的制定该制度,提出笔者自己的的意见。
[Abstract]:The inheritance Law of the people's Republic of China (hereinafter referred to as "inheritance Law") was promulgated in 1985 shortly after the implementation of the policy of reform and opening to the outside world. At that time, the promulgation and implementation of the inheritance Law established the principle of protecting citizens' private property according to law, stimulated the productive forces and creativity of citizens as free subjects, and played an important role in the early stage of reform and opening up. However, in the past three decades, great changes have taken place in all aspects of social economy and culture in China: the rapid economic development of our individual private economy, the significant changes in the national economic situation, and the social and cultural aspects, The social family structure constantly changes and shrinks, the Chinese traditional family idea gradually desalinates, the social culture is more and more open, has the inclusiveness. In judicial practice, the inheritance Law of our country has some limitations in application. The ways of inheritance, such as wills, bequests and bequeath maintenance agreements, play a role, but also reflect the deficiencies. Unable to meet the real needs of the people under the current social background. It is worth mentioning that, in recent years, natural persons, which have emerged many times in social life, have negotiated arrangements for their maintenance and inheritance by entering into contracts with other natural persons, including legal heirs, With the widespread occurrence of this situation, the nature of this kind of contract should be recognized in law, and whether it has legal effect, which is still the blank spot of our legislation at present, it is very necessary for us to study. However, the popular inheritance contract abroad is very similar to this kind of contract. Therefore, combining the current social basis, economic base and cultural basis of our country, As well as our country's judicial practice experience for many years, the promulgation of the General principles of Civil Law of the people's Republic of China provides a good opportunity, the author thinks that it is of great theoretical value to put forward the legislative suggestion of introducing the inheritance contract system in the revision of the inheritance Law. Also is through the legislation carries on our country rule of law construction new measure. In this paper, the author first expounds the legal act of disposition of inheritance and its lack of legislation in China's inheritance Law, and then analyzes a typical case in judicial practice. The phenomenon of signing agreements between the heirs and their legal heirs in the current social life, arranging and dealing with the problems of their own maintenance and personal property ownership after death, and explaining that these phenomena are universal, are introduced. However, at present, the inheritance Law in our country cannot find the basis of the right of claim to adjudicate this kind of case, thus illustrating the limitation of the application of the inheritance Law in our country by an example. After that, the author mainly analyzes the judgment made by the court in this typical case, including the different viewpoints of the two courts, and then the author explains the reasonableness and irrationality of the court judgment through the relevant theoretical knowledge. In view of the focus of this typical case, the author puts forward his own viewpoint, and finally finds out that the case of this kind of inheritance contract is a blank spot in China's inheritance Law at present, and there is no relevant legal basis, so it is worth our study and solution. At the same time, by referring to the inheritance contract system of solving similar cases in foreign countries, it shows that we can learn from it, as well as the views of the current theoretical circle of our country on inheritance contract. Then it further demonstrates the necessity and feasibility of adding inheritance contract system in our country. Finally, through the above theoretical analysis, and combining with the social reality of our country, we come up with a solution. That is to say, it is suggested that the legislator should add the inheritance contract system when the inheritance Law is amended to make up the blank spot of our country's legislation, and put forward the author's own opinion on how to make the system in detail.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.5

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