无人承受遗产法律制度研究

发布时间：2019-04-01 21:02

【摘要】：我国《继承法》自1985年至今没有修订过,所以目前仅有第三十二条以及"最高人民法院关于贯彻执行《中华人民共和国继承法》若干问题的意见"第五十七条两条规定了无人承受遗产的归属,在这30多年间,我国经济迅猛发展,公民的个人财产也随之飞速增长,《继承法》第三十二条对于目前的社会情况不具有可操作性,并且我国的现行立法中关于无人承受遗产制度的规定基本上属于空白,与我国的社会现状不相适应。所以,有必要构建我国无人承受遗产制度,有利于保护公民的私有财产权,发挥遗产的社会价值,实现遗产的抚养功能。本文由绪论、正文和结语构成,正文共分四部分:第一部分对无人承受遗产制度的概述,先对无人承受遗产的概念以及特征进行界定,即将无人承受的遗产界定为被继承人死亡后,经公告程序后,没有人接受继承又没有人受领遗赠的遗产,继而对于我国无人承受遗产制度的现状进行分析,并对法、日、俄、英、美无人承受遗产制度考察与评析,目的是通过对其他国家无人承受遗产制度的梳理,找出各个国家在无人承受遗产处理上的异同,学习其成果,借鉴其经验,为完善我国无人承受遗产制度寻找出值得借鉴之处。第二部分是通过何长友与佛山市顺德区杏坛镇西登村委会继承纠纷案和范俊杰与吴喜文、吴秀霞、吴俗谛被继承人债务清偿纠纷案两则案例,研究实践中无人承受遗产案件中的疑点、难点,即在实际司法实践中,由于无法可依,出现了同案不同判的情形,这就体现出我国无人承受遗产制度存在空白的问题。第三部分是结合案例,分析得出,实务中对于无人承受遗产案件缺乏可操作的法律规定,我国无人承受遗产制度存在缺少遗产管理程序、缺少公告程序以及无人承受遗产归属分配不合理的问题,根据这些问题总结出我国的无人承受遗产制度可以从管理、公告程序和归属问题三个方面去构建。第四部分是针对这些提出构建我国无人承受遗产制度的具体建议。对无人承受遗产管理问题,应依申请由法院选任遗产管理人,或者直接由村委会或居委会成员担任遗产管理人,对无人承受的遗产进行清点及保管,并给予其一定报酬。设立我国的公告程序,由遗产管理人向公权力机关申请,由该机关进行公告,催告继承人、被继承人的债权人和受遗赠人在法定期限内进行申报,并且根据遗产价值划分等级,由不同机关公告。对于无人承受的遗产的归属,可以将遗产分给依靠被继承人抚养的人等,在这些人都不存在的情况下,才将遗产收归国库或集体组织所有。
[Abstract]:The inheritance Law of our country has not been amended since 1985, So at present, only Article 32 and Article 57 of the opinions of the Supreme people's Court on the implementation of the Law of succession of the people's Republic of China provide for the attribution of unbearable heritages. During these 30-odd years, With the rapid development of China's economy, the personal property of citizens has also increased rapidly. Article 32 of the Law on inheritance is not operable in the current social situation. And the present legislation of our country basically belongs to the blank regulation about the unbearable heritage system, which is not compatible with the present social situation of our country. Therefore, it is necessary to construct the unbearable estate system of our country, which is beneficial to protect the private property rights of citizens, give full play to the social value of the heritage, and realize the raising function of the heritage. This paper is composed of introduction, text and conclusion. The main text is divided into four parts: the first part is an overview of the system of unbearable heritage, firstly, the concept and characteristics of unbearable heritage are defined. The unbearable estate is defined as after the death of the heir, after the announcement procedure, no one accepts the inheritance and no one receives the bequest, and then analyzes the present situation of the unbearable estate system in our country, and makes an analysis of the law, Japan, Russia and the present situation of the unbearable estate system in our country. The purpose of this study is to find out the similarities and differences in the handling of unbearable heritage in other countries, learn from its achievements, and draw lessons from its experience, through combing the unbearable heritage systems in other countries and finding out the similarities and differences in the handling of unbearable heritages in the United Kingdom and the United States. In order to improve the system of unbearable heritage in China, we should learn from it. The second part is through the succession dispute case between he Changyou and Xideng Village Committee of Xingtan Town, Shunde District, Foshan City, and two cases of dispute between Fan Junjie and Wu Xiwen, Wu Xiuxia, Wu Changzhi and Wu Changzhi's heir to the debt settlement dispute. In the research practice, no one can bear the doubt and difficulty in the inheritance cases, that is, in the actual judicial practice, because there is no law to rely on, there is a situation of different judgments in the same case, which shows that there is a blank problem in the unbearable estate system in our country. The third part is the combination of cases, the analysis shows that there is no operational legal provisions in practice for unbearable heritage cases, and there is a lack of heritage management procedures in our country's unbearable heritage system. Lack of announcement procedure and unreasonable distribution of unbearable estate ownership. According to these problems, it is concluded that the unbearable estate system of our country can be constructed from three aspects: management, announcement procedure and attribution. The fourth part is to put forward the concrete suggestion of constructing the unbearable heritage system in our country. In the case of unbearable estate administration, the court shall, upon application, appoint the estate administrator, or the members of the village committee or neighborhood committee directly, as the estate administrator, and shall count and keep the unbearable estate and give it a certain amount of remuneration. The declaration procedure for the establishment of our country shall be applied by the estate administrator to the organ of public power, which shall make a public announcement urging the heirs, creditors and legatees of the successors to declare within the statutory time limit, and to classify the estate according to the value of the estate, Announced by different organs. For the attribution of unbearable estate, the estate may be allocated to those who depend on the dependents of the heirs and so on, and so on. Only when none of these people exist will they return the estate to the treasury or to a collective organization.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.5

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