论我国特留份制度之构建

发布时间：2018-07-26 16:16

【摘要】：《继承法》颁布施行至今已经30年,在此期间立法机关并未组织过修改。但是社会家庭结构已经发生了较大的改变,从大家庭向核心家庭转变;人们的思想观念也受到极大冲击,“重喜好、轻人伦”的现象时有发生,尤其是本世纪之初发生的两个结果完全不同的案件1,更是引起社会对现行继承法律制度的广泛关注。现行《继承法》奉行遗嘱自由,遗嘱继承优先于法定继承。只有《继承法》及其司法解释中规定的必留份制度,以及规定在《民法通则》中的一般原则限制遗嘱自由。依据现行法律的相关规定,必留份享有者是缺乏劳动能力又无生活来源的继承人(以下简称:“双缺乏继承人”),导致适用的对象受到较大的制约;必要份额也没有统一确定的基准,使裁判者享有太大的裁量权,导致实践中会出现同案异判。因此,我国亟需完善遗嘱自由的限制制度。多数大陆法系国家的继承法中都专门设有特留份制度,它的功能就是对遗嘱处分的自由进行限制,以保护家庭的亲情伦理关系;尽管英美法系国家曾奉行遗嘱自由,但是如今都建立了家庭扶养制度,以限制遗嘱自由。相比较而言,特留份制度更能体现对家庭亲情伦理关系的保护,实现遗产公平分配。我国的社会现实需要约束被继承人对遗产的肆意安排,维护家庭亲情伦理道德。因而,目前许多学者提出修改继承法时需要增设特留份制度,并参考引进大陆法系国家的立法和司法实践经验。但由于继承法是与民众生活息息相关,需要与社会心理、生活习惯相适应,因此在借鉴外国特留份制度的同时需要紧密结合我国的国情,既要解决现有困境,又要与现有制度相协调。基于上述社会背景,修订《继承法》并增设特留份制度具有较强的紧迫性。本文希望通过梳理特留份制度的基本内涵,并依据我国的风土民情,理清增设特留份制度的理论难点,以期能够就相关制度内容提出不同的看法。本文分为以下四章:第一章是特留份制度的概述。在这一部分主要围绕特留份制度的起源及历史发展,揭示其在不同历史时期和不同法律传统下的立法目的;分析特留份制度的含义及其特点;针对特留份性质的两种主要学说的优缺点做了简要分析,从而为后续分析奠定基础。第二章是从比较法角度分析了不同立法例的制度设计。首先,笔者选取了法国、德国、日本作为分析对象,简要梳理大陆法系各国对特留份制度的规定。其次,分析了英美两国的家庭扶养制度的主要内容。最后分别指出特留份制度与家庭扶养制度各自优点,认为家庭扶养制度之功能与必留份一致,应当参考和引进特留份制度。第三章的重点是分析增设特留份制度的可行性。首先,简单介绍了我国的必留份制度,指出其存在的缺陷。通过对比我国的必留份制度与特留份制度的立法目的和具体内容,得出我国并无特留份制度的结论。其次,从特留份制度的法理基础和立法功能角度,分析增设特留份制度的合理性。最后,根据我国的实际情况及相关司法实践角度,论证增设特留份制度的必要性。第四章分析了如何立足基本国情创设特留份制度的相关内容。首先,基于我国家庭结构及传统的家庭美德,权利主体应当包括配偶、父母及子女。其次,特留份的计算基础应当包括遗产和生前的特种赠与,而具体份额的计算方式应当采用各别特留主义。再次,应当规定扣减制度,以保护特留份。最后,结合我国《继承法》的现有制度,就如何协调特留份制度与必留份制度、遗赠扶养协议、不分少分遗产制度之间的关系提出自己的观点。综上,本文认为:在保障弱势群体基本生活需要的基础上,需要增设特留份制度,从而实现遗嘱自由与家庭伦理、照顾弱势继承人的利益的平衡。
[Abstract]:"Inheritance Law" has been promulgated and implemented for 30 years. During this period, the legislature has not organized amendments. But the social family structure has changed greatly, from the big family to the core family; people's ideas have also been greatly impacted, the phenomenon of "heavy preference, light human nature" occurs, especially at the beginning of this century. Two cases with totally different results, 1, are the widespread concern of the society for the current legal system of inheritance. The current law of succession pursues the freedom of will, and the succession of will is preceded by legal inheritance. Only the law of succession and its judicial interpretation are required to be retained and the general principles in the general rules of the people's law limit the freedom of will. According to the relevant provisions of the current law, the required holders are the successors who lack the ability to work and have no source of life (hereinafter referred to as "double lack of heirs"), which leads to the larger restriction of the applicable objects; the necessary share does not have a unified set of benchmarks, so that the referees enjoy too much discretion, which leads to the occurrence of the same case in practice. Therefore, our country urgently needs to improve the system of the restriction of the freedom of Testament. In most civil law countries, the law of inheritance is specially set up in the inheritance law. Its function is to restrict the freedom of the probate to protect the family's family relationship ethics; although the countries of the Anglo American law system have given the freedom of Testament, the family support is now established. The system is to restrict the freedom of the will. In comparison, the system of special retention can reflect the protection of the family relationship and realize the fair distribution of the heritage. The social reality of our country needs to restrain the wanton arrangement of the heirs on the inheritance and maintain the ethical ethics of the family. However, as the inheritance law is closely related to the people's life and needs to adapt to the social psychology and the living habits, it needs to be closely combined with the state of our country, as well as the existing system, as well as the existing system, as the inheritance law is closely related to the life of the people and needs to adapt to the social psychology and the living habits. Coordination. Based on the above social background, it is very urgent to revise the inheritance law and add the special retention system. This article hopes to clear the theoretical difficulties of adding the special retention system by combing the basic connotation of the system of special retention, and according to the customs of our country, so as to make different views on the content of the system. The next four chapters: the first chapter is an overview of the special retention system. This part mainly focuses on the origin and historical development of the special retention system, reveals its legislative purpose under different historical periods and different legal traditions, analyzes the meaning and characteristics of the special retention system, and briefly analyzes the advantages and disadvantages of the two main doctrines of the special retention quality. The second chapter analyzes the system design of different legislation from the perspective of comparative law. First, the author selects France, Germany and Japan as the analysis object, and briefly combs the provisions of the system in the continental law system. Secondly, it analyzes the main contents of the family support system between the two countries. Finally, the author analyzes the main contents of the system of family support in the two countries. In the third chapter, the emphasis of the third chapter is to analyze the feasibility of adding a special retention system. First, the system is briefly introduced, and the defects of its existence are briefly introduced. According to the legislative purpose and specific content of the system and the special retention system, we can draw the conclusion that there is no special system in our country. Secondly, from the legal basis and legislative function of the special reserve system, the rationality of the extra reserved share system is analyzed. Finally, according to the actual situation of our country and the relevant judicial practice, the extra reserved share system is demonstrated. The fourth chapter analyzes the relevant contents of the establishment of a special reservation system based on the basic national conditions. First, based on the family structure and traditional family virtues of our country, the subject of rights should include spouses, parents and children. Secondly, the calculation basis of the reserved share should include the special gift of heritage and pre life, and the calculation of the specific share. Once again, the system of deductions should be set up to protect the reserved share. Finally, in combination with the existing system of the inheritance law of China, the author puts forward his own views on how to coordinate the system with the necessary retention system, the legacy agreement, and the relationship between the undivided inheritance system. On the basis of basic living needs, we need to set up a special retention system so as to realize the freedom of will and family ethics, and to balance the interests of the disadvantaged successors.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.5

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