后位继承制度研究

发布时间：2018-06-21 11:57

本文选题：后位继承 + 指定继承人　；参考：《宁波大学》2015年硕士论文

【摘要】：后位继承制度是由罗马法发展而来,历史悠久、源远流长。后位继承制度体现了被继承人的遗嘱自由,承认后位继承也是对被继承人遗嘱自由和真实意愿的尊重,只不过被继承人的遗嘱自由也应受到合理的限制。在后位继承制度中,继承人分为前位继承人和后位继承人,前位继承人首先获得遗产,待到被继承人所设之条件成就或期限到来时再将遗产移交给后位继承人。对遗产而言,前位继承人是用益权人,后位继承人方是所有权人。后位继承制度具有诸多之社会功能,能够对我国法制健全起到积极的帮助作用,我国应当承认后位继承制度。本文即通过对后位继承制度进行详细地分析和介绍,论证我国承认后位继承制度的必要性并就如何进行确立做具体的思考。本文共分为四个部分。第一部分是对后位继承制度的源流考察和法理分析。后位继承渊源于罗马法,中世纪的法国对其进行了进一步的发展,后由奥地利首次写入民法典,德国、瑞士等国随后承认逐渐推而广之。法理分析则包括后位继承的继承法理、物权法理以及法解释学原理。第二部分是对后位继承开始前的法律状态进行的论述。后位继承开始前,需要明确继承人,前位继承人和后位继承人都需要以指定或推定的方式加以确定。同时,前位继承人和后位继承人此时的法律地位也需要加以明确。第三部分是对后位继承开始后的法律后果进行的论述。后位继承的开始始于条件成就或期限到来,后位继承人有权请求前位继承人交付遗产,前位继承人负有交付遗产的义务。第四部分是对我国确立后位继承制度的论述。首先对我国确立后位继承制度的必要性进行证成,随后与相关遗产制度比较论证其优越性,最后就具体的确立进行论述,分为体系安排的考量和法条设计的具体思考。
[Abstract]:The later succession system is developed from Roman law, with a long history and a long history. The system of successor inheritance embodies the will freedom of the heirs, and the recognition of the successor inheritance is also the respect of the will freedom and the true will of the heirs, but the freedom of the will of the heirs should also be restricted reasonably. In the system of successor succession, the heirs are divided into the former heirs and the successors. The former heirs obtain the inheritance first, and then hand over the inheritance to the successors when the conditions or deadlines set by the heirs come. For the estate, the former heir is the usufruct, and the successor is the owner. The system of successor inheritance has many social functions and can help the perfection of our country's legal system. Through the detailed analysis and introduction of the later succession system, this paper demonstrates the necessity of recognizing the latter succession system in our country and gives some concrete thoughts on how to establish it. This paper is divided into four parts. The first part is the source and legal analysis of the later succession system. Later succession originated from Roman law, which was further developed by France in the Middle Ages, which was written into the Civil Code by Austria for the first time. Germany, Switzerland and other countries later admitted that it was popularized gradually. The analysis of legal theory includes the legal theory of inheritance, the legal principle of property law and the principle of legal hermeneutics. The second part is the discussion of the legal state before the beginning of successor succession. Prior to the beginning of subsequent succession, clear successors, former heirs and successors need to be determined by appointment or presumption. At the same time, the legal status of the former heirs and successors also needs to be clarified. The third part discusses the legal consequences after the beginning of successor succession. The beginning of subsequent succession begins with the arrival of a conditional achievement or term, and the successor has the right to request the former heir to deliver the estate, and the former heir bears the obligation to deliver the estate. The fourth part is about the establishment of successor inheritance system in China. First of all, the necessity of establishing the successor inheritance system in China is proved, and then compared with the related heritage system to demonstrate its superiority. Finally, the specific establishment is discussed, which is divided into the consideration of the system arrangement and the specific thinking of the design of the law.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.5

【参考文献】